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RBR/KFN/74-34-/.A2/MG7 



RECEIVED 

rjUL 2 1995 
IAW LIBRARY 



The 
NORTH CAROLINA 

REGISTER 



IN THIS ISSUE 



IN ADDITION 

Tax Review Board 



; ^ORTH 



TSTM 
ITIOM 



PROPOSED RULES 
Agriculture 

Environment, Health, and Natural Resources 
Human Resources 
Insurance 
Medical Examiners, Board of 



LIST OF RULES CODHTED 



RRC OBJECTIONS 



RULES INVALIDATED BY JUDICIAL DECISION 



CONTESTED CASE DECISIONS 



ISSUE DATE: July 1, 1993 

Volume 8 • Issue 7 • Pages 503 - 640 



INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODE 



NORTH CAROLINA REGISTER 



TEMPORARY RULES 



I 



The North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and notices of 
public hearings filed under G.S. 150B-21.2 must be published in 
the Register. The Register will typically comprise approximately 
fifty pages per issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription 
at a cost of one hundred and five dollars ($105.00) for 24 issues. 
Individual issues may be purchased for eight dollars (S8.00). 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings, 
P. 0. Drawer 27447, Raleigh, N. C. 27611-7447. 



Under certain emergency conditions, agencies may issue 
temporary rules. Within 24 hours of submission to OAH, the 
Codifier of Rules must review the agency's written statement of 
findings of need for the temporary rule pursuant to the provisions in 
G.S. 150B-21.1. If the Codifier determines that the findings meet 
the criteria in G.S. 150B-21.1, the rule is entered into the NCAC. If 
the Codifier determines that the findings do not meet the criteria, 
the rule is returned to the agency. The agency may supplement its 
findings and resubmit the temporary rule for an additional review 
or the agency may respond that it will remain with its initial 
position. The Codifier, thereafter, will enter the rule into the 
NCAC. A temporary rule becomes effective either when the 
Codifier of Rules enters the rule in the Code or on the sixth 
business day after the agency resubmits the rule without change. 
The temporary rule is in effect for the period specified in the rule or 
180 days, whichever is less. An agency adopting a temporary rule 
must begin rule-making procedures on the permanent rule at the 
same time the temporary rule is filed with the Codifier. 



ADOPTION AMENDMENT, AND REPEAL OF 
RULES 



NORTH CAROLINA ADMINISTRATIVE CODE 



The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 
150B of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include the time and place of the public 
hearing (or instructions on how a member of the public may request 
a hearing); a statement of procedure for public comments; the text 
of the proposed rule or the statement of subject matter; the reason 
for the proposed action; a reference to the statutory authority for the 
action and the proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days 
must elapse following publication of the notice in the North 
Carolina Register before the agency may conduct the public 
hearing and at least 30 days must elapse before the agency can take 
action on the proposed rule. An agency may not adopt a rule mat 
differs substantially from the proposed form published as part of 
the public notice, until the adopted version has been published in 
the North Carolina Register for an additional 30 day comment 
period. 

When final action is taken, the promulgating agency must file 
the rule with the Rules Review Commission (RRC). After approval 
by RRC, the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative 
Hearings for publication in the North Carolina Administrative Code 
(NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or 
before filing with OAH for publication in the NCAC. 



The North Carolina Administrative Code (NCAC) is a 
compilation and index of the administrative rules of 25 state 
agencies and 38 occupational licensing boards. The NCAC 
comprises approximately 15,000 letter size, single spaced pages of 
material of which approximately 35% of is changed annually. 
Compilation and publication of the NCAC is mandated by G.S. 
150B-21.18. 

The Code is divided into Titles and Chapters. Each state agency 
is assigned a separate title which is further broken down by 
chapters. Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of 
two dollars and 50 cents (S2.50) for 10 pages or less, 
plus fifteen cents (SO. 15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling in 
excess of 15,000 pages. It is supplemented monthly 
with replacement pages. A one year subscription to the 
full publication including supplements can be 
purchased for seven hundred and fifty dollars 
(S750.00). Individual volumes may also be purchased 
with supplement service. Renewal subscriptions for 
supplements to the initial publication are available. 

Requests for pages of rules or volumes of the NCAC should be 
directed to the Office of Administrative Hearings. 



CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, page 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to 
Volume 1, Issue 1, pages 101 through 201 of the North Carolina 
Register issued on April 1, 1986. 



FOR INFORMATION 


CONTACT 


Office 


of 


Administrative Hearings, 


ATTN: Ru 


es 


Division, 


P.O. 


Drawer 27447, Raleigh, North Carolina 


27611-7447, 


(919) 


733-2678. 











NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 

(919) 733-2678 



Julian Mann III, 

Director 
James R. Scarcella St., 

Deputy Director 
Molly Masich, 

Director ofAPA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 



ISSUE CONTENTS 



I. IN ADDITION 

Tax Review Board 503 

II. PROPOSED RULES 
Agriculture 

N.C. State Fair 506 

Plant Industry 513 

Veterinary Division 515 

Environment, Health, and 
Natural Resources 

Coastal Management 571 

Environmental Management .... 556 

Health Services 572 

Marine Fisheries 568 

Human Resources 

Medical Assistance 553 

Mental Health, Developmental 
Disabilities and Substance Abuse 
Services 516 

Insurance 
Actuarial Services 555 

Licensing Board 
Medical Examiners 591 

III. LIST OF RULES CODIFIED . . 593 

IV. RRC OBJECTIONS 603 

V. RULES INVALIDATED BY 

JUDICIAL DECISION 608 

VI. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 609 

Text of Selected Decisions 

92 DOA 0803 613 

92 DHR 1699 632 

VII. CUMULATIVE INDEX 639 



NORTH CAROLINA REGISTER 

Publication Schedule 

(January 1993 - December 1993) 







Last Day 


Earliest 


Earliest 










for Elec- 


Date for 


Date for 


Last Day 


*Earliest 


Issue 


Last Day 


tronic 


Public 


Adoption 


to Submit 


Effective 


Date 


for Filing 


Filing 


Hearing 


by Agency 


to RRC 


Date 


:£: sjc ^ ^ ^ ^fi ^e 


******* 


******* 


^c s[c + Jfi :fc :+: J£ 


******* 


>: :k :< •:< -■< i< •:< 


******* 


01/04/93 


12/09/92 


12/16/92 


01/19/93 


02/03/93 


02/20/93 


04/01/93 


01/15/93 


12/22/92 


12/31/92 


01/30/93 


02/14/93 


02/20/93 


04/01/93 


02/01/93 


01/08/93 


01/15/93 


02/16/93 


03/03/93 


03/20/93 


05/03/93 


02/15/93 


01/25/93 


02/01/93 


03/02/93 


03/17/93 


03/20/93 


05/03/93 


03/01/93 


02/08/93 


02/15/93 


03/16/93 


03/31/93 


04/20/93 


06/01/93 


03/15/93 


02/22/93 


03/01/93 


03/30/93 


04/14/93 


04/20/93 


06/01/93 


04/01/93 


03/11/93 


03/18/93 


04/16/93 


05/01/93 


05/20/93 


07/01/93 


04/15/93 


03/24/93 


03/31/93 


04/30/93 


05/15/93 


05/20/93 


07/01/93 


05/03/93 


04/12/93 


04/19/93 


05/18/93 


06/02/93 


06/20/93 


08/02/93 


05/14/93 


04/23/93 


04/30/93 


05/29/93 


06/13/93 


06/20/93 


08/02/93 


06/01/93 


05/10/93 


05/17/93 


06/16/93 


07/01/93 


07/20/93 


09/01/93 


06/15/93 


05/24/93 


06/01/93 


06/30/93 


07/15/93 


07/20/93 


09/01/93 


07/01/93 


06/10/93 


06/17/93 


07/16/93 


07/31/93 


08/20/93 


10/01/93 


07/15/93 


06/23/93 


06/30/93 


07/30/93 


08/14/93 


08/20/93 


10/01/93 


08/02/93 


07/12/93 


07/19/93 


08/17/93 


09/01/93 


09/20/93 


11/01/93 


08/16/93 


07/26/93 


08/02/93 


08/31/93 


09/15/93 


09/20/93 


11/01/93 


09/01/93 


08/11/93 


08/18/93 


09/16/93 


10/01/93 


10/20/93 


12/01/93 


09/15/93 


08/24/93 


08/31/93 


09/30/93 


10/15/93 


10/20/93 


12/01/93 


10/01/93 


09/10/93 


09/17/93 


10/16/93 


10/31/93 


11/20/93 


01/04/94 


10/15/93 


09/24/93 


10/01/93 


10/30/93 


11/14/93 


11/20/93 


01/04/94 


11/01/93 


10/11/93 


10/18/93 


11/16/93 


12/01/93 


12/20/93 


02/01/94 


11/15/93 


10/22/93 


10/29/93 


11/30/93 


12/15/93 


12/20/93 


02/01/94 


12/01/93 


11/05/93 


11/15/93 


12/16/93 


12/31/93 


01/20/94 


03/01/94 


12/15/93 


11/24/93 


12/01/93 


12/30/93 


01/14/94 


01/20/94 


03/01/94 



* TJie "Earliest Effective Date" is computed assuming that the agency follows the 
publication schedule above, that the Rules Review Commission approves the rule at 
the next calendar month meeting after submission, and that RRC delivers the rule to 
the Codifier of Rules five (5) business days before the 1st business day of the next 
calendar month. 



IN ADDITION 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



BEFORE THE TAX REVIEW BOARD 



In the matter of: 
The Proposed Assessment of 
Corporate Income Tax for the 
taxable year ended 30 June 1989 
by the Secretary of Revenue 
against UCI Holdings, Inc. 



ADMINISTRATIVE 
DECISION NUMBER: 



273 



THIS MATTER was heard before the undersigned duly appointed and acting members of the Tax 
Review Board at its regular meeting in the City of Raleigh on 30 April 1993, upon the petition of UCI 
Holdings, Inc. for review of a Final Decision of the Deputy Secretary of Revenue entered 12 September 1991 
sustaining a proposed assessment of corporate income tax for the taxable year ended 30 June 1989. 

AND IT APPEARING TO THE BOARD that the findings of fact made by the Deputy Secretary of 
Revenue were fully supported by competent evidence of record, that the conclusions of law made by the 
Deputy Secretary were fully supported by the findings of fact, and that the decision by the Deputy Secretary 
was fully supported by the conclusions of law; 

IT IS THEREFORE ORDERED that the Final Decision of the Deputy Secretary of Revenue is 
confirmed in every respect. 



Entered this the 8th day of June, 1993. 



TAX REVIEW BOARD 



Harlan E. Boyles, Chairman 
State Treasurer 



William W. Redman, Jr. 
Chairman. Utilities Commission 



Jeff D. Batts 



NORTH CAROLINA REGISTER 



July 1, 1993 



503 



IN ADDITION 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



BEFORE THE TAX REVIEW BOARD 



i 



In the matter of: 
The Proposed Assessment of 
Additional Income Tax for 
taxable year 1988 by the 
Secretary of Revenue against 
Jeffrey S. and Polly K. Whittle. 



ADMINISTRATIVE 
DECISION NUMBER: 



274 



THIS MATTER was heard before the undersigned duly appointed and acting members of the Tax 
Review Board at its regular meeting in the City of Raleigh on 30 April 1993, upon the petition of Jeffrey S. 
and Polly K. Whittle for review of a Final Decision of the Deputy Secretary of Revenue entered 18 February 
1992 sustaining a proposed assessment of additional income tax for the tax year 1988. 

AND IT APPEARING TO THE BOARD that the findings of fact made by the Deputy Secretary of 
Revenue were fully supported by competent evidence of record, that the conclusions of law made by the 
Deputy Secretary were fully supported by the findings of fact, and that the decision by the Deputy Secretary 
was fully supported by the conclusions of law; 

IT IS THEREFORE ORDERED that the Final Decision of the Deputy Secretary of Revenue is 
confirmed in every respect. 



' 



Entered this the 8th day of June, 1993. 



TAX REVIEW BOARD 



Harlan E. Boyles, Chairman 
State Treasurer 



William W. Redman, Jr. 
Chairman, Utilities Commission 



Jeff D. Batts 



I 



504 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



IN ADDITION 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



BEFORE THE TAX REVIEW BOARD 



In the matter of: 
The Proposed Assessment of 
Additional Sales and Use Tax 
for the period 1 July 1983 
through 30 June 1986 by the 
Secretary of Revenue against 
Piedmont Aviation, Inc. 



ADMINISTRATIVE 
DECISION NUMBER: 



275 



THIS MATTER was heard before the undersigned duly appointed and acting members of the Tax 
Review Board at its regular meeting in the City of Raleigh on 30 April 1993, upon the petition of Piedmont 
Aviation, Inc. for review of a Final Decision of the Deputy Secretary of Revenue entered 6 July 1992 
sustaining a proposed assessment of additional sales and use tax for the period 1 July 1983 through 30 June 
1986. 

AND IT APPEARING TO THE BOARD that the findings of fact made by the Deputy Secretary of 
Revenue were fully supported by competent evidence of record, that the conclusions of law made by the 
Deputy Secretary were fully supported by the findings of fact, and that the decision by the Deputy Secretary 
was fully supported by the conclusions of law; 

IT IS THEREFORE ORDERED that the Final Decision of the Deputy Secretary of Revenue is 
confirmed in every respect. 

Entered this the 8th day of June, 1993. 

TAX REVIEW BOARD 



Harlan E. Boyles, Chairman 
State Treasurer 



William W. Redman, Jr. 
Chairman, Utilities Commission 



Jeff D. Batts 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



505 



PROPOSED RULES 



TITLE 2 - DEPARTMENT OF 
AGRICULTURE 

l\otice is hereby given in accordance with G.S. 
150B-21.2 that the N.C. Board of Agriculture 
intends to amend rules cited as 2 NCA C 20B . 0102 

- .0104; .0106: .0203 - .0204; .0206; .0208; 
.0211: .0214; .0216; .0218; .0220; .0225; .0301; 
.0411; .0413; .0426; 2 NCAC 48A .0611; 2 NCAC 
48C . 0005; . 001 7; . 0020 -. 0021; . 0023 - . 0024; 2 
NCAC 52B .0502; and repeal rules cited as 2 
NCAC 20B .0105 and .0414. 

1 he proposed effective date of this action is 
October 1, 1993. 

1 he public hearing will be conducted at 10:00 
a.m. on August 12. 1993 at the Gov. James B. 
Hunt, Jr. Horse Complex (Restaurant), 4601 
Trinity Rd. , Raleigh, NC 27607. 

MXeason for Proposed Action: 

2 NCAC 20B .0102 - TRAFFIC REGULATIONS - 
To make minor changes in State Fair traffic rules. 
2 NCAC 20B .0103 - ADVERTISING MATTER - 
To update description of State Fair boundaries. 

2 NCAC 20B .0104 - ADMISSION REGUIA- 
TIONS - To increase State Fair gate admission 
prices and to update operating hours. 
2 NCAC 20B .0105- EMPLOYEE REGULATIONS 

- To remove internal operating procedure from 
rules. 

2 NCAC 20B .0106 - GENERAL - To make gram- 
matical changes and to remove prohibition on 
metal drink containers. 

2 NCAC 20B .0203 - OCCUPANCY OF SPACE - 
To clarify wording. 

2 NCAC 20B .0204 - FORFEITURE - To update 
reference to duration of State Fair. 
2 NCAC 20B .0206 - EXPIRATION OF CON- 
TRACTS - To reduce time for removal of tempo- 
rary booths from Fairgrounds. 
2 NCAC 20B .0208 - TIME LIMITS ON REMOV- 
AL - To change time for dismantling of exhibits 
and removal of items on display outdoors. 
2 NCAC 20B .0211 - SIGNS - To prohibit card- 
board signs. 

2 NCAC 20B .0214 - LOUDSPEAKERS: ETC. - 
To update reference to State Fair operating hours. 
2 NCAC 20B .0216 - PRICE SIGNS - To clarify 
requirements for posting prices at food stands. 
2 NCAC 20B .0218- CLEANLINESS - To clarify 



lessee 's responsibility for waste disposal. 
2 NCAC 20B .0220 - STORAGE TRAILERS - To 
change requirements for parking trailers on Fair- 
grounds. 

2 NCAC 20B .0225 - GAS OR ELECTRIC SER- 
VICE - To clarify requirements for electrical 
service to exhibitors. 

2 NCAC 20B .0301 - EXHIBITS AND EXHIBI- 
TORS - To delete prohibition on removal of live- 
stock prior to midnight on last day of State Fair. 
2 NCAC 20B .0411 - RESERVATIONS AND 
PAYMENT OF CHARGES - To clarify require- 
ments for deposits and settlements with lessees of 
State Fair property. 

2 NCAC 20B . 0413 - ALCOHOLIC BEVERAGES - 
To clarify restrictions on sale and consumption of 
alcohol at horse facilities. 

2 NCAC 20B .0414 - APPLICABILITY OF REGU- 
LATIONS - To repeal unnecessary rule. 
2 NCAC 20B .0426 - RENTAL RATES: FEES: 
AND PREMIUM BOOKS - To clarify rule concern- 
ing establishment of rental fees. 
2 NCAC 48A .0611 - PROGRAM PARTICIPA- 
TION AND PAYMENT OF FEES - To delete 
provisions for refund of penalties and interest on 
unpaid fees. 

2 NCAC 48C .0005 - PROHIBITED SALES - To 
clarify wording. 

2 NCAC 48C .0017 - INSPECTION AND STOP 
SALE ACTION OF SEED INSPECTORS - To 
clarify and update procedures for issuance of stop- 
sale orders on seed. 

2 NCAC 48C .0020 - TAGS AND LABELS AND 
STAMPS - To update rule to conform to changes in 
the law concerning seed tags and stamps. 
2 NCAC 48C .0021 - RESPONSIBILITY FOR 
OBTAINING NEW GERMINATION TEST - To 
delete reference to a specific time for new seed 
germination tests. 

2 NCAC 48C .0023 - ANALYSIS FOR FARMERS 
OR SEEDMEN - To clarify procedures for seed 
analysis services. 

2 NCAC 48C .0024 - IDENTIFICATION AND 
SIZE OF SAMPLES FOR SERVICE TESTING - To 
clarify and make grammatical changes. 
2 NCAC 52B .0502 - HEALTH REGULATIONS 
FOR POULTRY EXHIBITIONS - To indicate 
increased pullorum test fee for testing of exhibition 
birds. 

Ksomment Procedures: Interested persons may 
present their statements either orally or in writing 
at the public hearing or in writing prior to the 
hearing bx mail addressed to David S. McLeod, 



506 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



PROPOSED RULES 



Secretary of the North Carolina Board of Agricul- 
ture, P.O. Box 27647, Raleigh, NC 27611. 

CHAPTER 20 - THE NORTH 
CAROLINA STATE FAIR 

SUBCHAPTER 20B - REGULATIONS OF 
THE STATE FAIR 

SECTION .0100 - GENERAL PROVISIONS 

.0102 TRAFFIC REGULATIONS 

(a) Applicable North Carolina laws relating to 
traffic, parking and the operation of motor vehi- 
cles, as amended from time to time, are hereby 
incorporated into and made a part of these regula- 
tions, and the same shall be in full force and effect 
as to all parts of the North Carolina State Fair 
grounds, and as to the operation of motor vehicles 
therein and thereon, and shall have the same force 
and effect as though the said provisions were 
herein specifically set out in full. 

(b) Parking on all streets within the fair grounds 
is prohibited between the hours of 1:00 a.m. and 
6:00 a.m. during the period of the fair. All trucks 
and motorized vehicles must complete their deliv- 
eries and be off the streets by 10:00 a.m. each 
day. Absolutely no deliveries will be allowed 
(with the exception of ice) by motorized vehicles 
between the hours of 10:00 a.m. and midnight all 
days of the fair. During the period of the fair, 
certain locations within the fair grounds will be 
designated "restricted area." Parking or vehicular 
traffic within such restricted areas is prohibited 
without special permit from 6:00 a.m. to midnight 
each day of the fair . During all periods of the 
year other than State Fair period, vehicles may not 
be parked on State Fair streets or in State Fair 
parking lots for a period in excess of 24 hours 
unless previous arrangements to the contrary are 
made with the manager. Vehicles left on the 
grounds in violation of this Rule may be towed 
away and impounded at owner's risk and expense. 

(c) Unauthorized vehicles will not be allowed on 
the North Carolina State Fair grounds except in 
parking areas during the period of the annual State 
Fair unless such vehicles are on display in an 
exhibition and in such case, said vehicles must be 
kept in exhibit location and may not, under any 
circumstances, be operated on the streets of the 
fair grounds. State Fair personnel are authorized 
to use vehicles where necessary on the fair 
grounds in performance of duties. 

(d) The State Fair management has set aside 
parking spaces for automobiles in various parts of 



the State Fair grounds. Automobiles and articles 
may be left in said parking spaces during the 
period of the State Fair at owner's risk. 

(e) Any trailer or similar vehicle used for 
sleeping or cooking must be parked in the limited 
areas established and controlled by special permis- 
sion from the manager at set fees per night. 

(f) A vehicle parked in violation of North 
Carolina statutes and these regulations shall be 
removed to a parking lot outside the fence. 
Administration office and s heriff office shall be 
notified of make of car, license and where it is 
moved to. State Fair is not responsible for any 
damage in moving or after moving. 

(g) The Manager of the State Fair shall have 
authority to order the placement of such traffic 
control or restrictive signals and signs on the State 
Fair grounds as he shall deem necessary for the 
proper safety, protection and control of said fair 
grounds. 

Statutory Authority G.S. 106-503. 

.0103 ADVERTISING MATTER 

(a) Distribution of advertising material or matter 
of any kind, nature, or description by concession- 
aires, exhibitors, patrons attending annual exhibi- 
tions on the State Fairgrounds, political parties, or 
by any other person or persons whomsoever, shall 
be, and the same hereby is, prohibited on the State 
Fairgrounds unless such distribution shall be 
within and from the assigned and designated space 
and shall have been first duly authorized by the 
State Fair Manager upon application thereto, and 
that advertising material or matter of any kind, 
nature or description shall be on the counter or 
display area and shall not be handed out unless a 
fair patron requests such materials. Promiscuous 
handing out of such material, even from designated 
areas, is strictly forbidden. 

(b) The distribution in any manner of advertising 
material having a gummed or adhesive backing, 
such as labels, lapel badges, car bumper or win- 
dow stickers, etc., whether such distribution shall 
be from a contracted exhibit or concession space 
or elsewhere, is prohibited upon the State Fair 
grounds. Persons or firms found distributing such 
materials may, in the discretion of the fair manag- 
er, immediately forfeit all space right and, in 
addition, may be held financially responsible for 
any and all damage done to or occasioned by the 
State Fair as a result of these materials being 
affixed to State Fair property by third parties. 

(c) Operation of sound trucks or mobile vehicles 
equipped with public address systems, or vehicles 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



507 



PROPOSED RULES 



upon which any advertising signs, political or 
otherwise, have been affixed in any manner, 
whether such vehicles are in motion on the fair 
grounds or parked therein or abutting same, and 
operation thereof or parking same on the State Fair 
grounds, whether within or without the fenced-off 
area thereof, is hereby prohibited unless specific 
authorization for such operation or parking thereof 
shall have been first secured from the manager 
upon due application thereto. 

(d) For the purpose of enforcing the provisions 
of this Section, it is hereby determined that the 
State Fair grounds shall consist of and constitute 
that certain area of land in Wake County bounded 
on the south by N.C. Highway 5 4 Hillsborough 
Street , on the east by Prison Farm Road Blue 
Ridge Boulevard , on the north by OW Trinity 
Road, and on the west by State Fair Youth Center 
the Gov. James B. Hunt. Jr. Horse Complex , and 
includes the area without as well as within the 
fenced portion thereof. 

(e) The prohibitions and restrictions relating to 
advertising in these regulations shall not be con- 
strued as being applicable to lettered service trucks 
advertising a concern or its products while making 
necessary deliveries of merchandise or service to 
concessionaires or exhibitors on the State Fair 
grounds, or the normal small advertising on 
bumpers and windows of vehicles. 

Statutory Authority G.S. 106-503. 



.0104 ADMISSION REGULATIONS 

(a) All persons entering the North Carolina State Fair grounds must pay the established admission fee, 
except persons holding worker's permits. One-time-only admissions will be issued to those persons who are 
employed by the fair or are asked to appear on the grounds by the fair management for a specific purpose, 
relative to the operation of the fair. 

(b) The gates of the North Carolina State Fair will be open to visitors from 9:00 a.m. until midnight each 
day of the fair , exeept Sunday, when opening will be at 12:00 noon . Exhibit buildings will be open from 9:00 
a.m. to 9:45 p.m. daily , except Sunday, when opening will bo at 12:00 noon . 

(c) The State Fair Manager may operate a pass-out system at one or more of the outside gates. Persons 
exiting through these gates may, upon request, have their hand or vehicle stamped for readmittance through 
the same gate without additional charge. Readmittance must occur before 10:00 p.m. on the same day as 
pass-out or the hand stamp will not be honored. 

(d) Outside gate admission prices are as follows: 

(1) adult/child. 13 years of age and over 45^00 $6.00 

(2) child, 6 through 12 years of age $1.00 

(3) senior citizen, 65 and over Free 

(4) child, under 6 years of age Free 

(e) Outside gate admission prices for advance ticket sales are as follows: 

(1) adult/child, 13 years of age and over SA^Mi $5.00 

(2) child, 6 through 12 years of age $1.00 

(3) senior citizen, 65 and over Free 

(4) child, under 6 years of age Free 



508 8:7 NORTH CAROLINA REGISTER July 1, 1993 



% 



* 



% 



PROPOSED RULES 



(5) adult group sales purchasing a minimum of 40 tickets $4tQQ $4.75 

(f) The State Fair Manager may offer to exhibitors and concessionaires a reduced rate for gate admission. 
If offered, such discount tickets may be purchased from the administration office. Each discount ticket shall 
allow one admission during each day of the fair. These cards , which contain punch out s for each day of the 
fatF-r shall be non-refundable^ whether punch e d used or not, te and shall be used only by persons involved with 
concessions or exhibits^ 1-4 and not for general admission. 



Statutory Authority G.S. 106-503. 

.0105 EMPLOYEE REGULATIONS 

(a) No employee of the State Fair shall perform 
the following acts: 

{+) enter into any contract between himself 

and the fair other than his contract of 
employment with the fair; 

{3} have or acquire any financial interests, 

whether direct or indirect, in any con 
tract or contractural relation between 



the fair and 



;xhibi 



any concessionaire, cxriibi - 
tor, performer, v e ndor or contractor; 

0j engage or participate in business opera 

tions or dealings that might involve a 
conflict — between — h+s — obligations — and 
interests as a manager or employee of 
the fair, or the interests of the fair, and 
his own personal interests or the inter 
csts of hi s immediate family; and 

(4) be entitled to any special concessions 

involving the storage of vehicles or 
materials on the State Fair grounds or 



th«- 



use ot tair buildings, machinery or 
equipment, except as may be specifical 
ly approved by the fair manager. 

(b) All vehicles u s ed by employees of the fair in 
connection with the operation of the State Fair 
shall be the sole property of the fair to be used 
only on State Fair bu s ine ss . — Vehicle s donated to 
State Fair for the purpose of promotion shall be 
used only by authorization of the manager. — E-m- 
ployec s of th e fair, authorized to use privately 
owned vehicles, shall be reimbur s ed according to 
exi s ting regulations after submitting proper ex 
pense account forms. 

(e) — No employee of the fair s hall have the 
privilege of purchasing material s through the fair's 
name or on the fair's account. 

fd) — The following policies as regards employ - 
ment — eft — merit — and — without — di s crimination, — as 
established by the North Carolina Personnel Act, 
shall be followed by the fair: 



w- 



It s hall be the policy of the fair to 
foster the emp l oyment of individuals in 
accordance with their fullest capacities, 
regardle ss of race, color, creed, rcli 
gion or national origin and to safeguard 



their rights to hold employment with 
the fair without discrimination. 

{3) Every contract for or on behalf of the 

fair for material s , supplies, construction 
or space rental contracts for commercial 
sale or exhibit purposes may be cancel 
led or terminated — by the fair when 
discrimination on account of race, color 
or creed exists in the hiring or employ 
ment of common or s killed labor by the 
contractor pursuant to the contract. 



Statutory Authority G.S. 106-503. 

.0106 GENERAL 

(a) Any person or persons who shall make, aid, 
countenance or assist in making any noise, riot, 
disturbance and all persons who shall collect in 
bodies or crowds on the North Carolina State Fair 
grounds for unlawful purposes or to the annoyance 
or disturbance of citizens and those attending the 
North Carolina State Fair or lawfully on the North 
Carolina State Fair grounds may be expelled from 
the State Fair grounds for such period of time as 
the manager of the fair may determine. 

(b) Any person who shall appear in any street or 
public or exposed place on the North Carolina 
State Fair grounds, in a state of nudity, or dress 
not belonging to his or her sex, or in any indecent 
or lewd dress, or shall make any indecent exposure 
of his person, or be guilty of any obscene or filthy 
act, or any lewd, indecent or immoral or insulting 
conduct, language or behavior, or shall sell, lend, 
give away, distribute or in any manner attempt to 
do so, or show or have in his possession or offer 
for loan, gift or sale or distribute, lend, give or 
sell any obscene or indecent book, magazine, 
pamphlet, paper, writing, picture, drawing, photo- 
graph, or any article of lewd, obscene, immoral or 
indecent character or orally or otherwise give 
information as to where any such as above is 
obtainable or who shall exhibit any such to minors 
or procure any minor or any one else to sell, give, 
lend or distribute any such, shall be subject to the 
penalties and punishment provided in Subsection 
Paragraph (a) of this Rule. 

(c) Any person who shall unnecessarily or 



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509 



jmtrmrrrmrmm ««. igw ~«. r,r» 5 „ J .„^ J ^ JJJJ 



PROPOSED RULES 



maliciously beat, abuse or injure any animal on the 
North Carolina State Fair grounds shall be subject 
to the penalties and punishment provided in Sub 
section Paragraph (a) of this Rule. 

(d) No person shall carry from the specific area 
of any concession or other place of sale on the 
grounds of the fair, any liquid beverage in glass ©f 
metal containers, nor shall any person, when in 
motion about the grounds, carry any such liquid 
beverages in glass or metal containers. This 
Section shall not apply to non-alcoholic liquids 
brought into the fair grounds as a part of picnic 
meals or the like when consumed and used in a 
stationary locale. This Regulation is promulgated 
for the welfare and protection of all visitors to the 
State Fair and violators hereof shall be subject to 
the penalties provided in Subsection Paragraph (a) 
of this Rule. 

(e) Dogs and cats are not allowed on the fair 
grounds unless they are under leash, are carried by 
the person having possession of such animal or are 
on display in an exhibit contracted by the fair for 
the specific purpose of such exhibition. All such 
animals not on the grounds for exhibition shall be 
muzzled. 

Statutory Authority G.S. 1 06-503. 

SECTION .0200 - SPACE RENTAL: 
COMMERCIAL EXHIBIT AND 
CONCESSION REGULATIONS 

.0203 OCCUPANCY OF SPACE 

No space shall be occupied until the deposit full 
payment is complete made . The original copy of 
the rental contract shall be signed and returned to 
the Space Rental Superintendent. Final payment 
on Concession and Commercial Exhibit Contracts 
is due at the Space Rental Office, Administration 
Building, no later than September 1. Renters of 
space shall keep a copy of the rental contract on 
the rented premises. 

Statutory Authority G.S. 106-503. 

.0204 FORFEITURE 

Space assigned and not occupied by 8:00 a.m. on 
the first day of the fair, as well as all fees previ- 
ously paid, shall be forfeited to the fair as liquidat- 
ed damages. Any space which is not open for 
business or does not have an attendant at the space 
during the hours deemed necessary by the Space 
Rental Superintendent, during the fttfte H) days of 
the fair, shall, at the option of the State Fair 
Manager, be forfeited. Space rental contracts shall 



not be cancelled by the lessee without written 
notification to State Fair Manager and said written 
notification must be delivered to the Space Rental 
Superintendent no later than September 1 . Re- 
funds on cancelled space contracts shall not be 
made unless all provisions herein are complied 
with. 

Statutory Authority G.S. 106-503. 

.0206 EXPIRATION OF CONTRACTS 

All ground leases or space contracts, unless 
otherwise specified, will expire with the close of 
the fair each year and all temporary buildings, 
frames, booths, etc., shall be removed seven days 
within 72 hours following close of fair. , otherwise 
they Any such items not removed shall become the 
property of the North Carolina State Fair. 

Statutory Authority G.S. 106-503. 

.0208 TIME LIMITS ON REMOVAL 

No exhibit may be dismantled or removed until 
8 :00 a.m. 10:00 p.m. of the last day following the 
close of the fair. Building superintendents, gate- 
men and police officers shall be instructed to 
prevent any attempt to dismantle or remove exhib- 
its before the hour of release. Watchmen shall be 
on duty in buildings until 5:00 p.m. of the day 
following the close of the fair. Exhibitors and 
concessionaires shall remove all equipment from 
buildings by 5:00 p.m. Monday following the 
close of the fair. All outside equipment and 
machinery shall be removed no later than seven 
days 72 hours following the last day of the fair; 
otherwise, they will become the property of the 
State Fair to be disposed of as the manager may 
deem necessary. 

Statutory Authority G.S. 106-503. 

.0211 SIGNS 

All signs advertising any special product, wheth- 
er by a trademark or otherwise, will be prohibited 
on the outside of any stand or building. Menus 
will be permitted provided they do not list any 
item by the manufacturer's name or trademark. 
The space between the ground and the counter on 
all four sides must be entirely free of special 
advertising. Soft drink distributors, bakeries, meat 
dealers, dairies, and all other suppliers may fur- 
nish suitable signs for the inside of stands if 
requested by the concessionaire. No "A" boards 
or free standing boards are permitted. No corru- 
gated cardboard signs are permitted. 



510 



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PROPOSED RULES 



Statutory Authority G.S. 106-503. 

.0214 LOUDSPEAKERS: ETC. 

No loudspeaker, amplifier, radio or other broad- 
casting device is permitted on the State Fair 
grounds unless written permission is first obtained 
from the Space Rental Superintendent. Approved 
loudspeakers must be kept at a reasonable volume 
so as not to disturb normal business transactions in 
adjoining exhibits nor the general public. The 
Space Rental Superintendent reserves the right to 
revoke loudspeaker permission if the provisions of 
this Rule are not observed. Under no circumstanc 
cs may loudspeaker s be used before 1:00 p.m. on 
Sunday. 

Statutory Authority G.S. 106-503. 

.0216 PRICE SIGNS 

On the opening day of the fair, each lessee shall 
cause to be posted in a conspicuous manner at the 
front or entrance to his place of business and at 
point of order and point of sale, if different loca- 
tions , a neatly printed or painted sign, showing 
price (as approved by management) of meals, 
lunches, and all articles of food and drink to be 
sold and services performed under the contract. 
Lessee shall also keep displayed in plain view of 
the public his contract number, which will be 
furnished by the superintendent. 

Statutory Authority- G.S. 106-503. 

.0218 CLEANLINESS 

Purchasers Lessees of space or booth shall keep 
their space or booth plus the area immediately 
surrounding their space or booth in a clean and 
sanitary condition at all times by removing there- 
from any filth and refuse and placing same in 
centralized dump locations on the fair grounds as 
specified by the space rental and sanitation depart- 
ments. Lessee must comply with all laws and 
ordinances regarding disposal of waste. The use 
of public trash receptacles by purchasers of privi- 
leges is prohibited. Violation of this Rule may 
cause, in the fair manager's discretion, concession 
or exhibit to be closed and all fees previously paid 
to be forfeited. Lessee shall not throw any refuse 
or empty any water or other fluids on the ground 
or in the streets or gutters. The first violation of 
this Regulation shall be cause for the place of 
business to be closed with the forfeiture of all fees 
paid. 

Statutory Authority G.S. 106-503. 



.0220 STORAGE TRAILERS 

Trailers used for storage of supplies or offices as 
a direct part of concessions or exhibits will be 
permitted to park on the fair grounds provided 
they arc parked directly behind their own conce s 
sions or exhibit and do not take up parking s pace 
of other concessionaires or exhibitors and provided 
they are not used for sleeping or cooking. Car s or 
trucks parked behind stand s will pay twenty five 
dollar s — ($25.00) s pecial — parking permit in a 
location determined by the Space Rental Superin- 
tendent and must have a sticker or receipt on the 
trailer proving payment has been made for this 
privilege . 

Statutory Authority G.S. 106-503. 

.0225 GAS OR ELECTRIC SERVICE 

(a) The State Fair is not responsible or liable for 
failure of electric service. 

(b) Positively no one shall tamper with, or 
change, any of the general lighting in any of the 
State Fair buildings, and no electric connection 
excluding wall sockets plug-ins shall be made by 
any person not in the direct employ, or under the 
supervision of, the fair manager. 

(c) Prices quoted for electric service , etc., 
contemplate the ordinary job of connecting lights 
and appliance s . — Special wiring, setting motors, 
etc., will be charged for on a time and material 
basis are for having electrical power available to 
the Lessee. Lessee is responsible for all internal 
wiring and is responsible for having adapter plugs. 
if necessary, to connect to Fair electrical system . 

(d) The fair manager reserves the right to 
terminate service if conditions of contract are 
violated. 

Statutory Authority G.S. 106-503. 

SECTION .0300 - COMPETITIVE EXHIBIT 
REGULATIONS 

.0301 EXHIBITS AND EXHIBITORS 

(a) The entry department will be open to receive 
and return exhibits 1 1 days prior to the fair and 
nine days following the fair, 8:30 a.m. to 6:00 
p.m., except Sunday, when the department will be 
open from 1:00 p.m. to 6:00 p.m. 

(b) Exhibit buildings will be open to the public 
daily between the hours of 9:00 a.m. and 9:45 
p.m. during the fair. 

(c) On the last night of the fair, after 9:45 p.m., 
exhibits may be packed up and stored for removal. 
No vehicle will be permitted to enter fair grounds 



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511 



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MMMMMMMMIi 



PROPOSED RULES 



to remove exhibits before 8:00 a.m. of the morn- 
ing following the closing of the fair. Livestock, 
poultry, and rabbits will have a special release 
time on the last day of the fair. No livestock will 
be removed prior to 12 midnight of the last day of 
the fair. 

(d) No fair superintendent or other employee 
shall be permitted, directly or indirectly, to make 
an entry in any department of the fair over which 
he presides or wherein he may be employed. 

(e) The fair manager may limit exhibits to the 
facilities available at any given time. 

Statutory Authority G.S. 106-503. 

SECTION .0400 - OPERATION OF 
STATE FAIR FACILITIES 

.0411 RESERVATIONS AND 

PAYMENT OF CHARGES 

(a) A tentative reservation may be made for use 
of the building(s) by any organization, group, firm 
or individual approved by the Manager of the State 
Fair, subject to the availability of the facilities, 
without payment of any fee. Such tentative reser- 
vation shall automatically expire on the 10th day 
following the date upon which the tentative reser- 
vation was made. 

(b) If the date for which a tentative reservation 
was made is sought to be reserved by any other 
qualified organization, group, firm or individual, 
then the person(s) making the tentative reservation 
shall be allowed 48 hours after due notice in which 
to execute a written contract for use of the facili- 
ties and to pay the required cash deposit which 
must accompany such a contract. 

(c) In any event, a written contract must be 
executed not less than 24 hours prior to the sched- 
uled start of any and all performance or exhibition 
events, at which time lessee shall make a cash 
deposit of not less than one half of the specified 
"guaranteed minimum/' in the case of commercial 
lessee, and the full amount of the s pecified rental 
charge in the case of non commercial le s see. 

(d) Commercial le s see Lessee shall be required 
to make full settlement of 10 percent of the gross 
revenue or the other one half of the if greater than 
"guaranteed minimum," whichever shall be greater 
along with payment for any special items or 
services provided by the Fair , within 24 hours 
after the end of the event for which use of the 
facilities was contracted. The Manager of the 
State Fair may extend the period for final and full 
settlement if, in his judgment, additional time is 
required to determine the accurate gross revenue. 



Statutory Authority G.S. 106-503. 

.0413 ALCOHOLIC BEVERAGES 

(a) A person shall not sell, offer for sale, or 
possess for the purpose of sale, any alcoholic 
beverage on State Fair property, except as permit- 
ted under this Rule. 

(b) A person shall not possess or consume any 
alcoholic beverage at ticketed, commercial events 
that are open to the public on State Fair property 
except as permitted under this Rule. 

(c) Except during the annual State Fair, beer 
and unfortified wine may be sold and consumed at 
the horse facility Gov. James B. Hunt, Jr. Horse 
Complex , subject to state alcoholic beverage 
control laws and regulations. 

(d) Except during the annual State Fair, beer 
may be sold and consumed at Dorton Arena in 
connection with professional sporting events, 
subject to state alcoholic beverage control laws and 
regulations. 

Statutory Authority G.S. 106-503. 

.0414 APPLICABILITY OF REGULATIONS 

All other regulation s of the North Carolina Board 
of Agriculture pertaining to the operation of the 
State Fair and fair ground s not inconsistent with 
the regulations herein contained, shall be deemed 
applicable to facilities and the use thereof by all 
lessees. 

Statutory Authority G.S. 106-503. 

.0426 RENTAL RATES: FEES: 
AND PREMIUM BOOKS 



-tht 



(a) Subject, in all instances, to approval by 
State Board of Agriculture, the The Manager of 
the State Fair shall annually publish: 

( 1 ) a schedule of fees and other charges 
governing rental rates for State Fair 
properties and services; and 

(2) a premium book for exhibits and horse 
shows governing the awarding of cash 
prizes and other awards. 

(b) The State Fair Manager shall obtain approval 
from the State Board of Agriculture, a s required in 
(a) of this Rule - by January 15 of each year. 

{e) (b) The Board of Agriculture shall give 
notice of any hearing at which fees and other 
charges governing rental rates for State Fair 
properties and services or premium — books are 
approved pursuant to the procedures outlined in 
N.C.G.S. 150B-12. 

■(d) {c] Copies of fee schedules and premium 



512 



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PROPOSED RULES 



books shall be maintained in the Office of the State 
Fair Manager and made available to the public 
upon request. 

Statutory Authority G.S. 106-503; 106-503. 1(b). 

CHAPTER 48 - PLANT 
INDUSTRY 

SUBCHAPTER 48A - PLANT 
PROTECTION 

SECTION .0600 - BOLL WEEVIL 



{&) The Commi ss ioner may grant a total or 

partial refund of penalties for extenuating 
circum s tances, such as crop failure, crop 
damage or crop destruction, whether due 
to natural or other cau s e s . — A request for 
the refund of penaltie s , including a com 
pletc exp l anation of extenuating circum 
stances, mu s t be provided in writing to 
the Plant Pest Administrator within 30 
days of such payment. 



Statutory Authority G.S. 106-65.74; 
106-65.88; 106-65.91. 



106-65. 77; 



.0611 PROGRAM PARTICIPATION 
AND PAYMENT OF FEES 

All cotton farm operators in the state are hereby 
required to participate in the eradication program. 
Participation shall include timely reporting of 
acreage and field locations, compliance with 
regulations, and payment of fees. Farm operators 
within the elimination zone shall be notified 
through the extension offices or newspapers of 
their program costs on a per acre basis on or 
before March 15. 

(1) Growers are to report all planted cotton 
by completing a Cotton Acreage Report- 
ing Form and paying a per acre fee at the 
ASCS office by July 1 of the current 
growing season. 

(2) The fee is nonrefundable and is to pay 
for the program's estimated costs as 
determined by the Commissioner, but 
will not exceed nine dollars ($9.00) per 
acre. 

(3) Growers not reporting planted cotton to 
ASCS by July 1 of the current growing 
season will be assessed a three dollar 
($3.00) per acre penalty. 

(4) Growers under-reporting by more than 
ten percent of the actual planted acreage, 
as determined by ASCS, will be assessed 
a penalty of three dollars ($3.00) per acre 
on all acreage in excess of the reported 
acreage. 

(5) All acreage for which fees have not been 
paid on or before July 15 of the current 
growing season will be assessed a three 
dollar ($3.00) per acre penalty. 

i&) Intere s t at 15 percent per annum will be 

charged on all unpaid fee s and penalties 
from August 1 to date of payment. 

(7) (6) Fees and penalties shall be made 
payable to the North Carolina Depart- 
ment of Agriculture. 



SUBCHAPTER 48C - SEEDS 

.0005 PROHIBITED SALES 

The sale of any seed which contain any of the 
weed seeds or tubers listed below in excess of the 
stated limitation per pound of crop seed is prohib- 
ited: 

(1) two Purple Nutsedge and/or or Yellow 
Nutsedge tubers; 

(2) four Spurred Anoda, Cocklebur. 
Sandbur, Sicklepod, Blessed Thistle, 
Velvetleaf, Wild Onion and/or or Wild 
Garlic (in small grains or larger seeds); 

(3) eight Morning-glory; 

(4) 10 Corn Cockle; 

(5) 12 Wild Radish; 

(6) 27 Bermundagrass, Field Bindweed, 
Hedge Bindweed, Cornflower, Purple 
Nutsedge, Yellow Nutsedge, s eeds, Tex- 
as Panicum, Canada Thistle or Wild 
Onion and/or or Wild Garlic (in grasses 
and small seeded legumes); 

(7) 54 Broadleaf Dock, Curly Dock, Dodder, 
Giant Foxtail, Horsenettle, Wild Mustard 
et al, Bracted Plantain, Buckhorn Plan- 
tain or Quackgrass. 

Statutory Authority G.S. 106-277.9; 106-277.15. 

.0017 INSPECTION AND STOP SALE 
ACTION OF SEED INSPECTORS 

(a) All seeds defined as "seed offered for sale" 
in the North Carolina Seed Law, including seeds 
in containers bearing seed tags issued by a recog- 
nized certifying agency, are subject to inspection 
and all other provisions of the North Carolina Seed 
Law and these the rules and Regulation s adopted 
thereunder by the Board of Agriculture . 

(b) Upon determining a lot of seeds is in viola- 
tion of the North Carolina Seed Law, the officia l 
seed inspector is authorized to issue a stop-sale 



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513 



naammi 



. -......■.._.... 



PROPOSED RULES 



order on said lot of seed. The stop-sale order 
shall contain the complete identification of the seed 
lot and the number of bags or containers under 
stop-sale. 

(c) When a stop-sale order is issued on a lot of 
seed, the inspector shall attach a stop-sale tag to 
each one bag or container of said lot. and shall 
remove the North Carolina seed analysis tag and 
nnv other tag that may indicate an incorrect analy 
sis of the contents of the bag or container. The 
stop-sale tag shall not be removed,, nor any bags or 
containers of the lot sold or removed from the 
premises, until permission to do so is obtained 
from the Commissioner of Agriculture or his 
authorized agent. 

Statutory- Authority G.S. 106-277. 15. 

.0020 TAGS AND LABELS AND STAMPS 

(a) Every container of agricultural or vegetable 
seed 



containing 



40- 



■pett 



nds or more of s eed shall 



have attached thereto an official North Carolina a 
seed analysis tag, bearing the information as 
required by law (G.S. 106-277.3). 

(b) The sccdman's statement of analysis may be 
placed on the back side of the seed analysis tag, 
providing the tag bear s a name with address. 

fe) £b) The seedman's statement of analysis 
shall include all tag and label requirements as 
provided in the law (G.S. 106-277.3). Incomplete 
labeling is a violation of the seed law Seed Law. 

(d) (c} When no statement is made on the seed 
tag as to the name and number of noxious weed 
seed per pound of crop seed, it shall be considered 
equivalent to the statement, "none." The words 
"None in Excess" or similar phrases, are prohibit- 
ed. 

fe) — The official North Carolina s eed analysi s 
tags prescribed and made available by the Com 
mi ss ioncr s hall — be — white — of — manila. — Fed; — and 
yellow. — The red and yellow tags shall be limited 
in u s e to official seed inspectors. 

ff) The official — North — Carolina seed — stamp 

prescribed and made available by the Commission 
er may be used in lieu of the official North Caroli 
na seed analysis tag. — The official s tamp may be 
placed on a s eedman' s label which contains all the 
information required by law (G.S. — 106 227.3), 



iuch stamp to be 



:videnec that the revenue 



pertaining to the official — North — Carolina Seed 
Analy s is Tag has been paid. 

Statutory Authority G.S. 106-277. 15. 

.0021 RESPONSIBILITY FOR OBTAINING 



NEW GERMTNATION TEST 

The person in possession of any seed offered for 
sale, or exposed for sale for seeding purposes, 
shall be responsible for securing a new germina- 
tion test when the test date prior to sale, or expo 
s ure for sale, shows the nine month period re- 
quired by law has expired. The seed shall be 
relabeled or new seed analysis tags attached in 
compliance with the North Carolina Seed Law. 

Statutory Authority G.S. 106-277.15. 

.0023 ANALYSIS FOR FARMERS OR 
SEEDMEN 

(a) The germination and purity analyses of 
agricultural and vegetable seeds shall be free to 
any person residing within the state. However, the 
Seed Program Administrator shall have the privi- 
lege, with the approval of the Commissioner of 
Agriculture and the Board of Agriculture, of 
limiting the number of such free tests made annu- 
ally, or during certain seasons, for any one person 
and of designating the time or dates when such 
samples will be accepted for testing. The Seed 
Administrator may refuse to analyze any sample of 
seeds submitted for testing that has not been 
reasonably well cleaned, or does not comply with 
these Rules. 

(b) A fee of five dollars ($5.00) per sample (100 
seeds) shall be charged to any North Carolina 
citizen who requests the tetrazolium chloride 
(T.Z.) test. This test shall be limited to wheat, 
oats, barley and rye seeds from the period July 1 
to November 1 of each year, and to peanuts, 
soybeans, corn and cotton seeds from the period of 
December 1 through June 30 of each year. The 
Seed Administrator shall have authority to accept 
special problem samples of other species for T.Z. 
tests. 

fe-) — The Seed Program Administrator shall have 
authority to accept s pecial — problem samples of 
other species for T.Z. test s and to refuse to ana 
lyzc any sample of seeds submitted for te s ting that 
ha s not been reasonably well cleaned, or doe s not 
comply with these rules. 

fd-> (cj Fees for in-state testing of tall fescue 
and other grass seeds and plant tissues for the 
presence of fungal endophytes are as follows: 

(1) fifteen dollars ($15.00) per sample for 
seeds; 

(2) fifteen dollars ($15.00) per sample for 
plant tissue analysis; 

(3) twenty-five dollars ($25.00) per sample 
for seeds which require seedling pro- 
duction. 



514 



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PROPOSED RULES 



fe) (dj Fees for out-of-state testing of tall fescue 
and other grass seeds and plant tissues for the 
presence of fungal endophytes are as follows: 

(1) thirty-five dollars ($35.00) per sample 
for seeds; 

(2) twenty-five dollars ($25.00) per sample 
for plant tissue analysis; 

(3) forty-five dollars ($45.00) per sample 
for seeds which require seedling 
production. 

(f) (e] The fee for testing small grain seed for 
Loose Smut shall be fifteen dollars ($15.00) per 
sample. 

Statutory Authority G.S. 106-277.15. 

.0024 IDENTIFICATION AND SIZE OF 

SAMPLES FOR SERVICE TESTING 

When submitting seed samples for analysis, the 
person shall comply with the following: 

(1) Identification 

(a) Samples shall be plainly addressed to 
the North Carolina Department of 
Agriculture, Seed Laboratory, P.O. 
Box 27647, Raleigh, North Carolina 
27611-7647 ; 

(b) Samples identified with a lot number; 

(c) Kind and variety of seed; If the seed 
has been treated, the name of the 
substance used; 

(d) Name and address of sender; 

(e) A letter of notification of shipment sent 
in separate mail or attached to package 
of seeds when carrying proper postage; 

(f) Samples should be sent in substantial 
containers, and properly packed for 
mailing or shipping in order that they 
will arrive intact and without damage to 
the contents . 

(2) Size of Samples. When sending samples 
to the State Seed Laboratory.! the 
following are the minimum weights of 
samples to be submitted for complete 
analysis. Samples of seed that do not 
conform to these requirements may not 
be tested: 

(a) one-half ounce of tobacco seed; 

(b) two ounces of white, alsike or hop 
clovers and small grass seeds; 

(c) five ounces of red or crimson clover, 

alfalfa, lespedeza, fye grasses 

ryegrasses , fescues, orchard — gra s s 
orchardgrass , millet or seeds of similar 
size and weight; 

(d) one pound of cotton, audan — grass 



sudangrass , sorghums, or seeds of 
similar size; 
(e) two pounds of corn, wheat, oats, 
barley, rye, beans, peas, cowpeas, 
soybeans, vetches and seeds of similar 
or larger size. 

Statutory Authority G.S. 106-277. 15. 

CHAPTER 52 - VETERINARY DIVISION 

SUBCHAPTER 52B - ANIMAL DISEASE 

SECTION .0500 - POULTRY DISEASES 

.0502 HEALTH REGULATIONS FOR 
POULTRY EXHIBITIONS 

(a) Persons conducting and participating in 
poultry exhibitions shall comply with the 
following: 

(1) All chickens and turkeys for exhibition 
in North Carolina shall originate from 
U.S. pullorum-typhoid clean or 
equivalent flocks, or have a negative 
pullorum-typhoid test within 90 days 
(30 days for out-of-state birds) of the 
date of exhibition. All North Carolina 
owned birds must be tested by agents of 
the North Carolina Department of 
Agriculture. For North Carolina Birds 
and for out-of-state birds from U.S. 
pullorum-typhoid clean states, these test 
requirements may be satisfied by a 
negative test conducted by a North 
Carolina Department of Agriculture 
agent at the time of entry. The fee for 
pullorum-typhoid testing at the 
exhibition will be s4* eight cents 
($0.06) ($0.08) per bird with a 
minimum fee of one dollar ($1.00) per 
exhibitor. 

(2) Poultry for exhibition shall not have 
been vaccinated with a live virus 
vaccine within the last 30 days 
preceding the exhibition. 

(3) Each bird must be identified with a 
"tamper-proof" band at the time of 
pullorum-typhoid test. A copy of the 
pullorum-typhoid test chart must 
accompany birds to exhibition. 

(4) Birds are subject to examination 
(including blood test and swabs) by a 
representative of the North Carolina 
Department of Agriculture. Birds will 
not be accepted which are infected with 



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515 



PROPOSED RULES 



or showing any clinical signs of a 
contagious disease, or are infested with 
lice and/or mites. 

(5) Out-of-state birds will be admitted 
provided they are from an area that is 
not under quarantine for an infectious 
disease and satisfy the requirements of 
this Rule. 

(6) The secretary of each show will furnish 
the representative of the State 
Veterinarian with a list of names and 
addresses of all exhibitors at the time of 
the exhibition. 

(7) The secretary of each show will have 
these requirements printed in the show 
catalog or premium list. 

(b) The Commissioner may, when in the public 
interest to prevent disease, suspend any poultry 
exhibition in North Carolina. 

Statutory Authority G.S. 1 06-539; 106-540; 
106-543; 106-548. 

TITLE 10 - DEPARTMENT OF 
HUMAN RESOURCES 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the Commission for Mental Health, 
Developmental Disabilities and Substance Abuse 
Services intends to adopt rules cited as 10 NCAC 
14A . 1401-. 1403;. 1 501 -. 1505:1601-. 1605; . 1 701- 
.1703; .1801-. 1810; 1901-.1904; .2001-.2006; 
.21 01 -.2105; .2201 -.2208; .2301 -.2304; .2401- 
.2405; .2501 -.2507; .2601 -.2603; .2701 -.2702; 
.2801; .2901 -.2903; 10 NCAC 14J .0210; amend 
10 NCA C 14J . 0201; . 0203-. 0207; 10 NCA C 14L 
.0407; repeal 10 NCAC 14A .1301-. 1313; . 1315- 
.1317. 

1 he proposed effective date of this action is 
October 1. 1993. 

1 he public hearing will be conducted at 1:00 
p.m. on August 4. 1993 at the Sheraton Inn, 4504 
Creedmoor Road at Crabtree Valley Mall, 
President 's Room 1 , Raleigh , N. C 



MXeason for Proposed Action: 

10 NCAC 14A .1301-.1313 - Proposed repeal of 

current standards contained in 10 NCAC 14A 

.1301-. 1313. 

10 NCAC 14A .1315-.1317- Proposed repeal of 



current standards contained in 10 NCAC 14A 
.1314-. 1317. 

10 NCAC 14A .1401:2903 - Proposed adoption of 
standards contained in 10 NCAC14A .1401-. 2903. 
Minimum rules were adopted in 1979 for the 
development of a mental health and mental 
retardation delivery system. As that system has 
grown, more specific rules are now indicated to 
assure the quality of services within the 
Department of Corrections is commensurate with 
those standards developed for community 
programs. 

10 NCAC 14J .0201, .0203-.0207 - Proposed 
amendments - The proposed changes are to clarify 
the distinct uses of restraint and seclusion; to 
shorten the period of time before a restrained or 
secluded client shall be seen by a qualified profes- 
sional. 

10 NCAC 14J .0210 - Proposed adoption - To 
modify North Carolina Standards to reflect Nation- 
al Standard of Care; clarify State 's obligation to 
heed manufacturer's warning regarding restraint 
devices. 

10 NCAC 14L .0407 - Amend Rule to eliminate 
requirement that each client be employed for 20 or 
more hours per week. To comply with federal 
regulations on Supported Employment (34 CFR 
Parts 361 , 363, 376 and 380, dated June 24, 1992 
and effective August 8, 1992). (In determining 
whether the client has met all of the criteria under 
Supported Employment, the hours worked should 
no longer be considered). 

l^omment Procedures: Any interested person may 
present his comments by oral presentation or by 
submitting a written statement. Persons wishing to 
make oral presentations should contact Charlotte 
Tucker, Division of Mental Health, Developmental 
Disabilities and Substance Abuse Services, 325 N. 
Salisbury St., Raleigh, N.C., 27603, 919-733- 
4774, before August 3, 1993. Comments submitted 
as a written statement must be sent to the above 
address no later than August 2, 1993, and must 
state the Rules to which the comments are ad- 
dressed. Time limits for oral renmrks may be 
imposed by the Commission Chairman. Fiscal 
information regarding these Rules is available from 
this Division, upon request. 

CHAPTER 14 - MENTAL 
HEALTH: GENERAL 

SUBCHAPTER 14A - IDENTIFYING 
INFORMATION 



516 



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PROPOSED RULES 



SECTION .1300 - NORTH CAROLINA 
DEPARTMENT OF CORRECTION: 

DIVISION OF PRISONS: STANDARDS 

FOR MENTAL HEALTH, MENTAL 

RETARDATION 

AND SUBSTANCE ABUSE SERVICES 

.1301 SCOPE 

The standards contained within this Section shall 
apply to the delivery of mental health, mental 
retardation, alcohol and drug abuse services to 
incarcerated inmates by the Department of Corrcc 
tion. division of prisons, or by any other provider 
of services on a contract basis, which are delivered 
within the correctional system. 

Statutory Authority G.S. 148-1 9(d). 

.1302 DEFINITIONS 

The following terms shall have the meanings 
specified unless the context clearly — requires a 
different meaning: 

-(+) Administering Medication. The giving of 

a unit dose of a drug to a patient as a 
result of a lawful order; — Administering 
affect s only one patient and i s not re 
stricted to licen s ed pharmacists; 

-f5) Agency. — A local, regional, institutional 

or state — organization defined — by — tew-; 
charter — er — licen s e — to — provide — human 
s ervice s ; 

-0) Clinical Staff Member. Any employee of 

the mental health and mental retardation 
services system who has a part in provid 
ing treatment to an inmate; 

-(4) Continuity of Care. The continued meet 

ing of the client's neods regardless of 
changes in s tatus or location; 

-iSj Dispensing Medication. — Include s , but is 

not limited to. issuing to a client, or to a 
person acting on his behalf, one or more 
unit dose s of a drug in a suitable contain 

ef — w+th — appropriate — labeling; While 

including compounding, dispensing al s o 
include s the act of packaging a drug, 
cither from a bulk container or as a re s ult 
of compounding. — in a container other 
than the original container of the manu 
factur e r or distributor, and labeling the 
new container with all the information 
required by state and federal law. — Except 
for physicians and und e r s pecified condi 
tion s . — physician — extenders. — the — aet — ef 
dispensing is limited by law to licensed 



pharmacists and per s on s working under 
their immediate supervi s ion and may not 
be — performed — by — a — nurse — of — other 

non pharmacist except und e r the 

immediate. direct. afld personal 

supervision — of a — licensed — pharmacist. 
The filling or refilling of drug containers 
from nur s ing s tations or other service 
areas with the drug s called for. or the 
furni s hing of a drug to ouch areas, is 
dispensing; 

-(6) Follow Up Service. Provision for a 

continuing relationship with the client for 
the purpo s e of a ss uring that changing 
need s are recognized and appropriately 
ni^t , 

-(7) Inpatient Services. Care or treatment 

rendered to an inmate in any therapeutic 
setting where the individual is actually 
provided — w+th — a — bed — and — housed 
overnight; Service s include, but are not 
limited to. s hort term medical psychiatric 
stabilization a s well a s intermediate and 
long term — medical. — psychiatric. — social, 
psychological. — educational — and — other 
s upportive care required for individuals 
who — cannot — function — without — intense 
supervision in a controlled environment; 

-f&j Medication: 

(ft) sub s tances — recognized — in the official 

United States Pharmacopoeia, official 
Homeopathic — Pharmacopoeia — ef — the 
United — States. — er — official — National 
Formulary, or any supplement to any of 
them; 

fb} s ub s tance s — intended — fef — ase — m — the 

diagnostic, cure, mitigation, treatment, 
or prevention of disease — m — man or 
other animals; 

s ub s tance s (other than food) intended to 
affect the structure or any function of 
the body of man or other animals; and 
s ub s tance s — intended — for- — use — as — a 



i&- 



{4h 



eomponent of any article specified in 
(a), (b). or (e) of this Subdivision; but 
doe s — not — includ e — devices — of — their 
component s , part s , or accessories; 
Mental Health Program Director. — Any 



-i^h 



individual — who — is — respon s ible — for the 
operation of a mental health and mental 
retardation s ervice s s ystem program; 

{49} Mental Health Records. Aey 

documentation — pertaining — to — treatment 
received within the mental health service s 
system which is kept separate and apart 



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517 



PROPOSED RULES 



from tho s e formal entries in the inmate's 
outpatient medieal r e cord; 

{44^ Mental — Health — Services — Sy s tem. A 

mechanism — by — which — mental — health 
treatm e nt is provided to inmate s within 
the North Carolina division of prisons; 
Mental Retardation. Significantly 



f+5V 



<m- 



subaverage general intellectual 

functioning — e xi s ting — concurrently — wrtb 

deficits m — adaptive — behavior — and 

manife s ted — during — tbe — developmental 

period; 

Outpatient Services. — Care or treatment 

render e d to an inmate in any therapeutic 

s etting where the individual is not housed 

overnight; 

Patient. — A person who is mentally ill, 

mentally retarded, an alcoholic or drug 

abuser related to his phy s ical or mental 

impairment, — ef — em — agency — ©f — group 

seeking services for the prevention or 

reduction of these condit i on s ; The term s 

"client" and "inmate" are occa s ionally 

used in place of "patient" in appropriate 

section s of the standard s ; 

Program. An — organized — response — to 



f+4)- 



«5)- 



mt- 



H^ 



prevent, contain, reduce or eliminate one 
or more human problem s or condition s ; 

Standard. Something — e s tablished — by 

authority, cu s tom, or general consent as 
a mod e l or example; something set up 
and established by authority a s a rule for 
the measure of quantity, quality, and 
value; 

System. An organized or established 

procedure. 



Statutory Authority G.S. 148- 19(d). 

.1303 ACCESS TO PROFESSIONAL 
SERVICES 

Each inmate shall have acce ss to the appropriate 
mental health professional as determined by his 
need s . 

Statutory Authority G.S. 148-1 9(h). (d). 

.1304 MEDICAL RECORDS 

fa) — There s hall be a written record maintained 
for every inmate undergoing active mental health 
treatment. 

fb) T-be — record — s hall — contain — s ufficient 

information to clearly identify the inmate, justify 
the diagnosis and treatment, and record the re s ult s . 
Records s hall be current, active, and confidential. 



fe) — The facility shall maintain an inmate record 
service which will provide adequate, accessible 
record s containing easily retrievable information. 

Statutory Authority G.S. 148- 19(d). 

.1305 CONTINUITY OF CARE 

fa) — The Division of prisons shall insure that 
there will be continuity of care for all inmates 
receiving mental health services. 

fb) — There s hall be a system of referral for 
potential and active patient s for the purpo s e of 
entering and continuing treatment. 

fe) — There s hall be a system to provide for the 
orderly discharge of patients from treatment, the 
di s tribution of discharge information, and, to the 
extent — feasible, — tbe — ob s ervation — of — behavior 
following discharge. 

{4) — The Division of prisons s hall cooperate in 
establishing among the — Department of Human 
Re s ource s , divi s ion of prisons, division of adult 
probation and parole, and other s ervice agencies a 
s y s tem which will facilitate continuity of care for 
inmate s relea s ed from confinement who desire 
continued treatment. 

Statutory A uthority G. S. 1 48- 1 9(a) .(h). (d). 

.1306 MEDICATION 

There s hall — be a s ystem to insure that each 
inmate — w+H — receive — bre — prescribed — medication 
regardle ss of his a ss ign e d location. Procedure s for 
dispensing and admini s tering controlled s ubstances 
shall — be — in compliance — wrtb — federal and — s tate 
regulation s . 

Statutory Authority G.S. 148-1 9(d). 

.1307 CONFIDENTIALITY 

fa) — All information contained in an inmate's 
mental health r e cord s hall be con s idered privileged 
and confidential with the exception of information 
con s idered matter s for public record. 

fb) — An inmate's name. age. s ex. race, offen s e 
for which convicted, court where sentenced, length 
of s entence, dat e of s entencing, date of arrival, 
date of transfer from prison, program placement 

and progre ss , conduct grad e . custody 

cla ss ification, di s ciplinary offen s es and dispo s ition, 
escapes and recaptures, dates regarding release and 
the pre s ence or ab s ence — of detainer s — shall — be 
considered matters of public record: 

f4-) Each Mental Health Program Director 

s hall — in s ure confidentiality of inmate 
mental health records. Only mental 



518 



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PROPOSED RULES 



m 



♦ 



health clinician s having direct 

responsibility for the inmate and his 
treatment plan and clerical — personnel 
having specific record re s ponsibilities 
shall have access to the inmate' s mental 
health records. — These record s s hall be 
kept — separate — from — admini s trative 
folders and appropriately s ecured. — Ne 

employee. management committee 

member — ef — volunteer. — except — those 
personnel — specified above — shall — have 
access to an inmate's mental health 
record — without — written — authorization 
from — the — Mental — Health — Program 
Director or his designee. 
Each Mental Health Program Director 
shall insure that information contained 
in inmate mental health records shall 
not be released to oth e r than approved 
outside agencies or individuals: 
fA) — Information — contained — m — inmate 
mental health record s may be released 

te an attending psychologist. 

psychiatrist, or governmental agencies 
directly — involved — m — mental — health 
treatment upon written consent of the 
inmat e . 
■(-&) — Individuals — involved — m — approved 

teaching, s taff development. 

evaluation and research projects may 
have access to inmate mental health 
records — as — leftg — as — the — proper 
precaution s are taken to di s gui s e the 
identities of the inmates. 
{€) — Confidential — information — within — aft 
inmate's mental health record may be 
released without written consent to 
other — individual s — employed — m — the 
Department of Correction only when 
and to the extent that the performance 
of their duties r e quir e that they have 

access to such — information. If an 

individual — is — being — con s idered — f-ef 
parole, a s ummary of the contents of 
his record shall be mad e available. 

upon request. te the Parole 

Commi ss ion. 
0) Confidential information — s hall be 



♦ 



disclosed without the inmate's written 
authorization — te — the — e xt e nt — that — the 
clinician — rea s onably — determines — that 
such di s clo s ure i s nece s sary to protect 
against clear and — sub s tantial — r4sk — ef 
imminent serious — injury. — disease. — ef 
death being inflicted by the inmate on 



W- 



&- 



himself or others, or a threat to the 
security of the unit. 

All standards applying to confidentiality 
s hall al s o apply to those individuals and 
agencies providing contractual services 
te — the — North — Carolina — division — ef 
prisons. 

The North Carolina division of prisons 
recognize s the more restrictive nature 
of the Federal HEW alcohol and drug 
abu se confidentiality — regulations — and 
sftaH — comply — with. — and — educat e — its 

employees m regard te^ these 

regulation s . 



Statutory- Authority G.S. 148-1 9(d). 

.1308 INPATIENT SERVICES 

(a) The North Carolina division of prisons shall 
provide an inpatient mental health services for 
inmate s identified as needing these s ervices. 

fb) — All referral s to the inpatient facility shall be 
channeled — through — the — appropriate — outpatient 
services s ystem. — Written policies and procedures 
for admis s ion to the inpatient facility shall be made 
available to the outpatient services system. 

{e) — The mental health professional staff shall 
have — the — re s ponsibility — fef — screening — inmate s 
referred to the inpati e nt facility to determine the 
appropriateness of the referral. The physician staff 
members of the inpatient facility shall have the 
authority to admit inmates to the inpatient facility. 

{4) — Inpatient s ervices shall be provided in a 
therapeutic setting. 

te-) The — Divi s ion — of Prisons — sheH — provide 

appropriate and qualified mental health staff to the 
inpatient facility. 

i4) — There s hall be written procedure s for th e 

functioning — ef- — the — inpatient — facility. These 

procedure s s hall cover: 

fk) initial as s ignment, tran s fers, and any 

movement into or out of the facility; 

■fSj coordination and collaboration among 

staff — member s — within — the — inpatient 



0&- 



facility; 
-the administering 



-ef- prescribed 



<4k 



medication; and 
s taffing pattern s . 



fg-) — Upon discharge from the inpatient facility. 
and — with — the — patient's — p e rmi ss ion. — appropriate 
follow up s hall be arranged by the staff of the 
inpatient facility. 

Statutory Authority G.S. 148- 19(d). 



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519 



PROPOSED RULES 



.1309 OUTPATIENT SERVICES 

(a) The North Carolina division of prisons shall 
provid e — outpatient — mental — health — services — f-ef 
inmate s identified as needing these services. 

(b) It shall be the re s ponsibility of all division of 
prisons — employees — te — refer — fef — mental — health 
services — screening — those — inmate s — whe — show 
behavior s ugge s ting a need for such s ervice s . 

fe} — The mental health professional staff shall 
have the responsibility of s creening the individuals 
referred to determine the level of int e rvention 
required. 

(d) Adequate outpatient mental health treatment 
shall he provided by the Division of prisons to 
those inmates found to be in need and who indicate 
a willingness to accept s uch treatment. 



Statutory Authoritx G.S. 148-1 9(d). 



0) a — follow up — service — developed — m 

conjunction with — the — Department — ef- 
Human Resources and the Division of 
Adult Probation and Parole to provide 
the — mentally — retarded — inmate — wrtb- 
continuity of care following release. 

Statutory Authority G.S. 148-1 9(d). 

.1313 EMERGENCY SERVICES 

fa} — Emergency mental health s ervices shall be 
provided. 

fb} — The mental health emergency services plan 
shall include a primary and secondary system to 
in s ure the availability of emergency services. 

fe-) — Emergency s ervices shall be coordinated 
with other elements of the mental health s ervice s 
system to in s ure continuity of care. 



.1310 ENVIRONMENTAL STRESS 

Inmates — under active — mental — health treatment 
shall be housed in the lea s t s tre ss ful environment 
appropriat e — for treatment — and — available — m — the 
Division of prisons. 

Statutory Authority G.S. 148-1 9(a), (b),(d). 



.1311 



DRUG AND ALCOHOL ABUSE 
SERVICES 



tde 



fa} The — Division — of prisons — skefl — pfev 

services for drug and alcohol abusers. 

fb-) The — Divi s ion — of prisons — shall — develop. 

implement, and coordinate drug and alcohol abuse 
services or shall contract for such services. 

fe} There — shall — be — a — system — ef- — patient 

identification — referral. — service — delivery. — and 
follow up care. 

Statutory Authority G.S. 148-1 9(d). 

.1312 MENTAL RETARDATION SERVICES 

fa} The — Division — of prisons — sheH — provide 

s ervice s for the mentally retarded. 

(b) There s hall be a system of identification of 
mentally retarded inmates in need of services. 

fe} There — sheH — be a sy s tem of referral — te 

service s for the mentally retarded including, but 
not limited to. the following: 

f+-» adult — work — activity — program s — fef 

s ub s tantially handicapped mentally 

retarded inmates; 

staff 



a+- 



-an — appropriate — and — qualifk 
person to assist each mentally retarded 
inmate — m — coping — with — institutional 
s tre s s: and 



Statutory Authority G.S. 148-19(a),(b),/d). 

.1315 RIGHT TO TREATMENT/RIGHT 
TO REFUSE TREATMENT 

fa} — An inmate has a right to receive mental 
health — treatment — and — a — right — te — refu s e — such 
treatment except as provided in Paragraph (b) of 
this Rule. 

(b) When an inmate refuses to receive treatment, 
treatment may be forced only in accordance with 
procedures described in the Divi s ion of Prison's 
Health Care Procedures Manual. 

Statutory Authority G.S. 148- 19(d). 

.1316 STAFF TRAINING 

fa} The Divi s ion of prisons shall have the 

re s pon s ibility of providing in service training so 
that its employees will be capable of providing the 
necessary support to the mental health treatment 
staff. 

fb} Employees — s hall — receive — training — m 

recognizing behavior which identifie s an inmate as 
one who s hould be referred to the mental health 
s ervice s delivery system and shall be trained in the 
proper referral procedure. 



i) Employ* 



#«H- 



y'ces snan receive training in managing 
the behavior of inmates identified as having mental 
health di s abilitie s . 



*^ 



fd} Employees shall — receive training — m 

importance of the proper distribution and control 
of prescribed medication. 

fe-t Employee s — s hall — receive — training — m 

maintaining the confidentiality of mental — health 
information. 



520 



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PROPOSED RULES 



Statutory Authority G.S. 148-1 9(a), (b),(d). 

.1317 PROFESSIONAL DEVELOPMENT 

(a) The Division of prisons shall provide oppor 
tunities for the professional development of its 
mental health service s s y s tem staff. 

fb) Professional — development — shall — include 

opportunities — fef — increasing — skills — through 
in service — training — and — opportunities — te — attend 
appropriate seminars and short course s offered by 
professional — organization s — and — institutions — ef 
higher learning. 



Statutory Authority G.S. 148-1 9(d). 

SECTION .1400 - SCOPE AND 
DEFINITIONS 

.1401 SCOPE 

This Subchapter sets forth standards for the 
delivery of mental health and mental retardation 
services to inmates in the custody of the Depart- 
ment of Correction. These standards shall apply 
to such services provided to inmates by the De- 
partment or by any other provider of services on 
a contractual basis. 

Statutory Authority G.S. 148-1 9(d). 

.1402 REQUIRED SERVICES 

(a) The Department shall provide or contract for 
mental health and mental retardation services. 

(b) Such services, which address the needs of 
the client as assessed by a clinician, shall include. 
but need not be limited to: 



ill 
ill 
ill 
14) 
{5} 



emergency; 
prevention; 
outpatient; 
residential; and 
inpatient. 



Statutory Authority G.S. 148-1 9(d). 

.1403 DEFINITIONS 

For the Rules contained in this Subchapter, the 
following definitions apply: 

(1) "Administering medication" means direct 
application of a medication whether by 
injection, inhalation, ingestion, or any 



other means to the client. 



ill 



131 



'Admission" means acceptance of an 



inmate for mental health and mental 
retardation services in accordance with 
Department procedures. 
"Area" means one of the six geographic 



141 



ill 



161 

ill 



181 



191 
(10) 



liil 



(12) 
(13) 

(14) 



catchment areas designated by the De- 
partment for administrative purposes. 
"Area program" means a public agency 
providing mental health, developmental 
disabilities and substance abuse services 
for a catchment area designated by the 
Commission for Mental Health. Develop- 
mental Disabilities and Substance Abuse 
Services. 



"Chief of Mental Health Services" means 
the individual who is responsible for the 
development, provision and monitoring 
of mental health and mental retardation 
services in the Department's Division of 
Prisons. His duties include ensuring 
compliance with statutory and profession- 
al standards for services. 
"Client" means an inmate who is admit- 



ted to and is receiving mental health or 
mental retardation services. 
"Client care evaluation study" means 
evaluation of the quality of services by 
measuring actual services against specific 
criteria through collection of data, identi- 
fication and justification of variations 
from criteria, analysis of unjustified 
variations, corrective action, and follow- 
up study. 

"Client record" means a written account 
of all mental health and mental retarda- 



tion services provided to an inmate from 
the time of acceptance of the inmate as 
the client until termination of services. 
This information js documented on stan- 
dard forms which are filed in a standard 
order in an identifiable folder. 



"Clinician" means a psychiatrist, physi- 



cian, or psychologist. 
"Commission" means the Commission for 
Mental Health, Developmental Disabili- 
ties and Substance Abuse Services, estab- 
lished under Part 4 of Article 3 of Chap- 
ter 143B of the General Statutes. 
"Contract agency" means an entity with 
which the Department contracts for a 
service as defined in the standards exclu- 
sive of intermittent purchase of service 
for an individually identified client. 
"Department" means the Department of 
Correction. 

"DHR" means the Department of Human 
Resources. 

"DHR review team" means the staff 
delegated by the Department of Human 
Resources to monitor the implementation 



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July 1, 1993 



521 



PROPOSED RULES 



(15) 



(16) 



171 



(18) 



(19) 



(20) 



(21) 



(22) 



< 23) 



24) 



(25) 
(26) 



of standards in accordance with the pro- 
visions of G.S. 148-19(d). 
"Direct care staff" means staff who pro- 
vide care, treatment, or habilitation ser- 
vices to the client on a continual and 
regularly scheduled basis. 
"Disability group" means two or more 
inmates who are either mentally ill or 
mentally retarded. 

"Discharge" means the termination of 
mental health or mental retardation ser- 
vices to the client. 



"Dispensing medication" means issuing 
for the client one or more unit doses of a 
medication in a suitable container with 
appropriate labeling. 

"Documentation" means provision of 
written, dated and authenticated evidence 
of the delivery of services to the client or 
compliance with standards, 
"emergency service" means a service 
which is provided on a (24-hour, non- 
scheduled basis to inmates for immediate 
screening and assessment of presenting 
problems. Crisis intervention and refer- 
ral to other services are provided as 
indicated. 

"Facility" means the physical area, where 
mental health or mental retardation 
services are provided, including both 
buildings and grounds, under the auspices 
of the Department. 

"Habilitation" means education, training, 
care and specialized therapies undertaken 
to assist a mentally retarded client in 
achieving or maintaining progress in 
developmental skills. 
"Habilitation plan" means an individual- 
ized, written plan for the client who is 
mentally retarded which includes measur- 
able, time-specific objectives based on 
evaluations, observations, and other 
assessment data. The plan is based on 
the strengths and needs of the client and 
identifies specific staff responsibilities for 
implementation of the plan. 
"Health professional" means a staff mem- 
ber trained in the delivery of medical or 
mental health services. 
"Inmate" means an incarcerated individu- 



al who remains in the custody of the 
Department. 

"Inpatient service" means a service pro- 
vided on a 24-hour basis. Client care is 
provided under the clinical direction of 



(27) 
(28) 



29) 



a physician or doctoral level psycholo- 
gist. The service provides continuous, 
close supervision for the client with 
moderate to severe mental health prob- 
lems. 

"Legend drug" means a drug that must be 
dispensed with a prescription. 
Medication" means a substance in the 
official "United States Pharmacopoeia" or 
"National Formulary" intended for use in 
the diagnosis, cure, mitigation, treatment 
or prevention of disease or intended to 
affect the structure or any function of the 
body. 

"Mental health program director" means 
the individual who is responsible for the 
operation of mental health and mental 
retardation services for inmates. 



"Mental illness" means the term as de; 
fined in G.S. 



122C-3. 

"Mental retardation" means the term as 
defined in G.S. 122C-3. 



(30) 
(311 

(32) "Nurse" means a person licensed to 
practice in the State of North Carolina 
either as a registered nurse or as a li^ 
censed practical nurse. 

(33) "Officer in charge" means the correction- 
al officer who has designated responsibil- 
ity for the custody and safekeeping of 
inmates in the facility. 

(34) "Outpatient service" means a service 
designed to meet the diagnostic and 
therapeutic needs of the client residing 
with the regular inmate population. Indi- 
vidual counseling, psychotherapy, extend- 
ed t esting and evaluation, and medication 
therapy are provided as needed. 

(35) "Peer review" means the formal assess- 
ment by professional staff of the quality 
and efficiency of services , ordered or 
performed by other professional staff. 

(36) "Physician" means a medical doctor who 
is licensed to practice medicine in the 
State of North Carolina. 

(37) "Prevention service" means a service 
provided to the prison population. Ser- 
vice activities include counseling, infor- 
mation, instruction, and technical assis- 
tance with the goals of preventing dys- 
function and promoting well being. 

(38) "Privileging" means a process by which 
each staff member's credentials, training 
and experience are examined and a deter- 
mination made as to which treatment or 
habilitation modalities the staff member is 



522 



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PROPOSED RULES 



% 



I 



qualified to provide, 

(39) "Program evaluation" means the system- 
atic documented assessment of program 
objectives to determine the effectiveness, 
efficiency, and scope of the system under 
investigation, to define its strengths and 
weaknesses and thereby to provide a 
basis for informed decision-making. 

(40) "Protective device" means an intervention 
that provides support for a medically 
fragile client or enhances the safety of the 
client with self-injurious behavior. Such 
device may include geri-chairs or table 
top chairs to provide support and 
safety for the client with a major physi- 
cal handicap; devices such as seizure 
helmets or helmets and mittens for self- 
injurious behaviors; or a device such as 
soft ties used to prevent a medically jU 
client from removing intravenous tubes, 
indwelling catheters, cardiac monitor 
electrodes, or similar medical devices. 

(41 ) "Psychiatric nurse" means an individual 
who is licensed to practice as a registered 
nurse in the State of North Carolina by 
the North Carolina Board of Nursing and 
who is a graduate of an accredited 
master's level program in psychiatric 
mental health nursing with two years of 
nursing experience, or has a master's 
degree in behavioral science with two 
years of supervised clinical experience, 
or has four years of experience in 
psychiatric mental health nursing. 

(42) "Psychiatrist" means a physician who is 
licensed to practice medicine in the State 
of North Carolina and who has completed 
an accredited training program in 
psychiatry. 

(43) "Psychologist" means an individual who 
is licensed as a practicing psychologist or 
a psychological associate in the State of 
North Carolina or one exempt from 
licensure requirements who meets the 
supervision requirements of the North 
Carolina Board of Examiners of 
Practicing Psychologists. 

(44) "Psychotherapy" means a form of 
treatment of mental illness or emotional 
disorders which is based primarily upon 
verbal interaction with the client. 
Treatment is provided by a trained 
professional for the purpose of removing 
or modifying existing symptoms, of 
attenuating or reversing disturbed 



(45) 



(46) 



(47) 



(48) 
(49) 



(50) 



(.51 



patterns of behavior, and of promoting 
positive personality growth and develop- 
ment. 

"Psychotropic medication" means 
medication given with the primary 
intention of treating mental illness. 
These medications include, but are not 
limited to , antipsychotics, 
antidepressants, minor tranquilizers and 
lithium. 

"Qualified mental health professional" 
means any one of the following: 
psychiatrist; psychiatric nurse; psycholo- 
gist; psychiatric social worker; an 
individual with a master's degree in a 
related human service field and two years 
of supervised clinical experience in 
mental health services; or an individual 
with a baccalaureate degree in a related 
human service field and four years of 
supervised clinical experience in mental 
health services. 

"Qualified mental retardation 
professional" means an individual who 
holds at least a baccalaureate degree in a 
discipline related to developmental 
disabilities and who has at least one year 
of experience in working with mentally 
retarded clients. 

" Qualified professional" means a 
qualified mental health professional or a 
qualified mental retardation professional. 
"Qualified record manager" means an 
individual who is a graduate of a 
curriculum accredited by the Committee 
on Allied Health Education and 
Accreditation of the American Medical 
Association and the Council on Education 
of the American Health Information 
Management Association and who is 
currently registered or accredited by the 
American Health Information 
Management Association. 
"Quality assurance" means a process for 
objectively and systematically monitoring 



and evaluating 
appropriateness, and 



the quality, 
effectiveness of 



mental health and mental retardation 
services provided and the degree to 
which those services meet the identified 
needs and intended goals for the client. 



52) 



"Release" means the completion of an 

inmate's active sentence and return to the 

community. 

"Research" means inquiry involving a 



8:7 



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July 1, 1993 



523 



MHMMittiftliM 



PROPOSED RULES 



(53) 



(54) 



(55) 



(56) 



(57) 



(58) 



(59) 



(60) 



trial or special observation made under 
conditions determined by the investigator 
to confirm or disprove a hypothesis, or to 
explicate some principle or effect . 
"Residential service" means a service 
provided in a designated treatment setting 
where 24-hour supervision is an integral 
part of the care, treatment, habilitation or 
rehabilitation provided to the client. 
"Responsible clinician" means the 
psychologist, psychiatrist, or physician 
designated as responsible for the client's 
treatment. This may include a clinician 
designated as on-call for the facility. 
"Restraint" means limitation of the 
client's freedom of movement with the 
intent of controlling behavior by 
mechanical devices which include, but 
are not limited to, cuffs, ankle straps, or 
sheets. For purposes of these rules, 
restraint js a therapeutic modality and 
does not include protective devices used 
for medical conditions or to assist a non- 
ambulatory client to maintain a normative 
body position, or devices used for 
security purposes. 

"Seclusion" means isolating the client in 
a separate locked room or a room from 
which he cannot exit for the purpose of 
controlling the client's behavior. For 
purposes of these rules, seclusion is a 
therapeutic modality and does not include 
segregation for administrative purposes. 
"Service" means an activity or 
interaction intended to benefit an 
individual who is in need of assistance, 
care, habilitation, intervention, 
rehabilitation or treatment. 
"Service delivery site" means any area, 
correctional institution, residential unit, 
or inpatient unit operated by the 
Department where mental health and 
mental retardation services are provided. 
"Social worker" means an individual who 
holds a master's degree in social work 
from an accredited school of social work 
and has two years of clinical social work 
experience in a mental health setting or 
who is a clinical social worker certified 
by the North Carolina Certification Board 
for Social Work. 
"Standards" means minimum standards 



for the delivery of mental health and 
mental retardation services to clients- 
prescribed by the Commission for Mental 



(61 



66) 



Health. Developmental Disabilities and 
Substance Abuse Services and codified in 
10 NCAC 14A .1400 through .2900. 
"State facility" means a facility operated 
by the Division of Mental Health, 
Developmental Disabilities and Substance 
Abuse Services and which provides 
mental health, mentalretardation or 
substance abuse services. 



(62) "Support service" means a service 
provided to enhance the client's progress 
in his primary treatment or habilitation 
program. 

(63) "Testing services " means the 
administration and interpretation of the 
results of standardized instruments for the 
assessment, diagnosis or evaluation of 
psychological or developmental disorders. 

(64) "Treatment" means the process of 
providing for the physical, emotional, 
psychological, and social needs of the 
client through services. 

(65) "Treatment plan " means an 
individualized, written plan of treatment 
for a mentally ilf client. The plan 
contains time-specific goals and strategies 
for implementing the goals, and identifies 
direct care staff responsible for the 
provision of treatment services to the 
cli ent. 

"Waiver" means a situation in which the 
commission determines that a specific 
prison site is not required to comply with 
a specific standard. A waiver is granted 
according to ffie provisions of K) NCAC 
14B .0500. 



Statutory Authority- G.S. 148-1 9(d). 

SECTION .1500 - ORGANIZATIONAL 
RESPONSIBILITIES 

.1501 COORDINATION AND DELIVERY 
OF SERVICES 

The Department shall develop and implement a 
plan to ensure coordination fn the delivery of all 
mental health and mental retardation services. 

Statutory Authority G.S. 148-1 9(d). 

.1502 ORGANIZATIONAL CHART 

The organizational chart of the Department shall 
clearly articulate the channels of responsibility in 
implementing and ensuring the coordination of 
mental health and mental retardation services. 



524 



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NORTH CAROLINA REGISTER 



July 1, 1993 



PROPOSED RULES 



Statutory Authority G.S. 148-1 9(d). 

.1503 DISTRIBUTION OF STANDARDS 

The Department shall distribute to al] sen 



deliver/ sites adequate copies of the Rules of this 
Subchapter and any subsequent revisions to these 
Rules as they occur. 

Statutory Authority G.S. 148-1 9(d). 

.1504 COMPLIANCE WITH RULES 

(a) The Department shall conduct an annual in- 
ternal evaluation of compliance with Commission 
standards in each service delivery site. 

(b) The evaluation report shall be made 
available to the DHR review team. 

Statutory Authority G.S. 148-1 9(d). 

.1505 GRIEVANCE RULE 

The Department shall develop and implement a 
rule which identifies procedures for review and 
disposition of grievances regarding mental health 
and mental retardation services. 

Statutory Authority G.S. 148-1 9(d). 

SECTION .1600 - REQUIRED STAFF 

.1601 PSYCHIATRIST 

Each service delivery site shall employ, or 
contract for, the services of a psychiatrist to ensure 
the client's accessibility to services which require 
the judgment and expertise of a psychiatrist. 

Statutory Authority G.S. 148-1 9(d). 

. 1 602 PSYCHOLOGIST 

Each service delivery site shall em ploy, or 
contract for, the services of a psychologist to 
ensure the client's accessibility to services which 
require the judgement and expertise of a 
psychologist. 

Statutory Authority G.S. 148-1 9(d). 

.1603 REGISTERED NURSE 

Each service delivery site shall employ, or 
contract for, a qualified registered nurse to ensure 
that the client is given the nursing care that re- 
quires the judgment and specialized skills of a 
registered nurse. 

Statutory Authority G.S. 148-1 9(d). 



.1604 SOCIAL WORKER 

Unless exempted by the Chief of Mental Health 
Services, based on size and mission of the facility, 
each service delivery site shall employ, or con- 
tract for, social work staff to ensure the client's 
accessibility to services which require the knowl- 
edge and expertise of a social worker. 

Statutory Authority G.S. 148-1 9(d). 

.1605 SUPPORT STAFF 

Each service delivery site shall have support staff 
to ensure the delivery of mental health and mental 
retardation services to clients. This includes, but 
need not be limited to. clerical staff. 

Statutory Authority G.S. 148-1 9(d). 

SECTION .1700 - ORGANIZATIONAL 
RELATIONS 

.1701 COORDINATION OF SERVICES 

The Department shall develop and implement 
procedures to facilitate cooperative working rela- 
tionships between the staff of mental health and 
mental retardation services, custody personnel, and 
other service staff to facilitate the provision of 
services for inmates who are mentally iM or men- 
tally retarded . 

Statutory Authority G.S. 148-1 9(d). 

.1702 DEFORMATION AND OUTREACH 
SERVICES 

The Department shall provide, to correctional 
staff, information designed to promote awareness 
of mental health and mental retardation services 
available to inmates within the Department. 

Statutory Authority G.S. 148-1 9(d). 

.1703 AGREEMENT WITH THE 
DEPARTMENT OF HUMAN 
RESOURCES 

The Department shall have a written agreement 
with the Department of Human Resources regard- 
ing mutual responsibilities for mental health and 
mental retardation services to inmates under 
Department supervision. 

Statutory Authority G.S. 148-1 9(d). 

SECTION .1800 - QUALITY ASSURANCE 

.1801 SCOPE 



8:7 



NORTH CAROLINA REGISTER 



July I, 1993 



525 



■ MHHWimiHIHlWWJ 



PROPOSED RULES 



(a) Quality assurance shall be a continuing 
responsibility of the Department and each service 
delivery site that offers mental health and mental 
retardation services, 

(b) Quality assurance activities shall include, but 
need not be limited to: 

( 1 ) clinical and professional supervision 
and privileging; 
client care evaluation studies; 



161 



a social worker. 



L2J 
ill 
(4J 
ill 
i6j 

CD 



record review; 
utilization and peer review; 
employee education and training; 
program evaluation; and 
evidence of corrective action. 



Statutory Authority G.S. 148-1 9(d). 

.1802 QUALITY ASSURANCE PLAN 

(a) The Department shall establish and imple- 
ment a written quality assurance plan for mental 
health and mental retardation services that de- 
scribes how quality assurance activities will be 
carried out. 

(b) Quality assurance activities shall include, but 
need not be limited to, the following: 

( 1) an objective and systematic process for 
monitoring and evaluating the quality 
and appropriateness of client care, 
incorporating a review of significant 
incidents, which may include but need 
not be limited to, suicides, sudden 
deaths, and major assaults; 

(2) a written plan of professional and clini- 
cal supervision describing such activi- 
ties and how they shall be carried out; 

(3) the establishment and implementation of 
program evaluation activities; 

(4) the strategies for improving client care; 
and 

(5) evidence of corrective action. 

(c) The plan shall be reviewed annually, and 
may be revised at any time by the Department. 

Statutory Authority G.S. 148-1 9(d). 

.1803 QUALITY ASSURANCE 
COMMITTEE 

(a) The Department shall have a quality assur- 
ance committee which shall be comprised of: 

( 1 ) representation from mental health and 
mental retardation service areas ; 

(2) a qualified record manager; 

(3) a nurse; 

(4) a physchologist; 

(5) a psychiatrist; and 



(b) The purpose, scope and organization of the 
quality assurance committee shall be specified in 
the quality assurance plan, which shall include, but 
need not be limited to the following: 

(1) the committee shall meet at least 
monthly; 

(2) a member shall not review his own 
client's treatment or habilitation record; 
and 

(3) minutes of meetings shall be recorded 
and shall include, but need not be 
limited to: 

(A) date, time, attendees and absentees; 
and 

(B) a summary of the business which was 
conducted. 

Statutory Authority G.S. 148-1 9(d). 

.1804 CLIENT CARE EVALUATION 
STUDIES 

The quality assurance committee shall ensure that 
at least one client care evaluation study of issues, 
relevant to the improvement of services to clients. 
is completed during each fiscal year. 

Statutory Authority G.S. 148-1 9(d). 

.1805 CLIENT RECORD REVIEW 

The quality assurance committee shall establish, 
implement and document the criteria, procedure 
and methodology for client record reviews for 
completeness and adequacy, as delineated in 
Section .2000 of these Rules. 

Statutory Authority G.S. 148-1 9(d). 

. 1 806 SUPERVISION OF MENTAL HEALTH 
AND MENTAL RETARDATION 
STAFF 

(a) The Department shall implement a written 
plan of supervision for staff who are not qualified 
mental health or mental retardation professionals. 
as defined in Rule . 1403 of Section . 1400. and 
who provide mental health or mental retardation 
services. 

(b) The Department shall ensure that: 

( 1) each mental health staff member who 
provides services, and who is not quali- 
fied in that service area, shall have an 
individual contract of supervision with 
a qualified mental health professional; 
and 

(2) each mental retardation staff member 



526 



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PROPOSED RULES 



shall be supervised by, or have access 
to, the professional supervision of a 
qualified mental retardation profession- 
aL 

Statutory Authority G.S. 148-1 9(d). 

.1807 PRIVILEGING OF ALL 
PROFESSIONAL STAFF 

(a) The Department shall ensure that the qualifi- 
cations of each mental health and mental retarda- 
tion professional are examined, and a determina- 
tion is made as to treatment or habilitation privi- 
leges granted and supervision needed . 

(b) Delineation of privileges shall be based on 
documented verification of the individual's compe- 
tence, training, experience and licensure. 

(c) The privileging process shall be reviewed 
and approved by the Department's quality assur- 
ance committee. 

Statutory Authority G.S. 148- 19(d). 

.1808 EMPLOYEE EDUCATION AND 
TRAINING 

(a) The Department shall: 

(1) provide or secure orientation programs 
and annual continuing education and 
training for employees to enhance their 
competencies and knowledge needed to 
administer, manage, and deliver quality 
mental health and mental retardation 
services; and 

(2) assure the maintenance of an ongoing 
record of all education and training 
activities provided or secured for em- 
ployees. 

(b) The education and training activities shall: 

(1) address, at a minimum, the needs iden- 
tified by the quality assurance process 
and related committees; and 

(2) as deemed necessary by the Depart- 
ment, be provided at no expense to 
staff. 

Statutory Authority G.S. 148-1 9(d). 

.1809 PROGRAM EVALUATION 
ACTIVITIES 

(a) The Department shall implement program 
evaluation activities. 

(b) These activities shall reflect the evaluation of 
program quality, effectiveness and efficiency in 
such areas as the: 

(1) impact of the program in reducing readmissions; 



(2) availability and accessibility of services; 

(3) impact of services upon the clients 
within the service area; 

(4) patterns of use of service; and 

(5) cost of the program operation. 

Statutory Authority G.S. 148-1 9(d). 

.1810 QUALITY ASSURANCE ANNUAL 
REPORT 

(a) The Department shall make available, to the 
DHR review team, a written annual report summa- 
rizing the activities and recommendations of the 
quality assurance committee. 

(b) This report shall include, at a minimum, the 
following functional areas: 

(1) client care evaluation studies; 

£2) 

13} 

(41 



client record reviews; 



utilization and peer reviews; 
clinical supervision; 

(5) employee education and training activi- 
ties; and 

(6) the results of program evaluation. 

Statutory Authority G.S. 148-1 9(d). 

SECTION .1900 - FACILITIES 
MANAGEMENT 

.1901 SCOPE 

The Rules [n thus Section apply to each service 
delivery site within the Department and to any 
other provider of services on a contractual basis. 

Statutory Authority G.S. 148-1 9(d). 

.1902 BUILDINGS AND GROUNDS 

Buildings and grounds shall be well-maintained 
in order to promote the health and safety of both 
clients and staff. 

Statutory Authority G.S. 148-1 9(d). 

.1903 SPACE REQUIREMENTS 

(a) Space shall be provided to facilitate the 
delivery of mental health and mental retardation 
services. 

(b) Each client jn an inpatient mental health unit 
shall be housed in a single cell. 

(c) Each client in a residential treatment pro- 
gram, who is housed in multiple client rooms, 
shall have a minimum of 50 square feet of living 
space. 

(d) Each service delivery site shall have private 
space for interviews and conferences with clients. 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



527 



PROPOSED RULES 



Statutory Authority G.S. 148- 19(d). 

. 1 904 ADDITIONAL REQUIREMENTS FOR 
RESIDENTIAL/LNPATIENT UNITS 

(a) Each residential and inpatient unit providing 
mental health or mental retardation services shall 
have indoor space for group activities and gather- 
ings. 

(b) The space ]n which therapeutic and habilita- 
tive activities are routinely conducted shall be 
separate from sleeping areas. 

Statutory Authority G.S. 148- 19(d). 

SECTION .2000 - CLIENT RECORDS 

.2001 SCOPE 

(a) The Rules in this Section apply to each 
service delivery site and to any other provider of 
services on a contractual basis, unless otherwise 
specified in this Section. 

(b) This Section applies to the management of 
client information which \_s generated by a service 
delivery site during the period of time that treat- 
ment or habilitation services are rendered to 
clients. 



Statutory Authority G.S. 148-1 9(d). 

.2002 STANDARD CLIENT RECORD 

(a) The Department shall develop and maintain 
a standard client record for each client who 
receives mental health or mental retardation treat - 
ment or habilitation services. 



(b) The same forms and filing format shall be 
utilized within each disability. 

Statutory Authority G.S. 148-1 9(d). 

.2003 RECORD REQUIREMENTS 

(a) A written client record shall be maintained 
for each client, and shall contain, at a minimum, 
the following identifying information: 



ill 

m 

m 

£4) 

ill 

16) 



name; 



record number; 



date of birth; 

race, sex, and marital status; 
admission date; and 
discharge date. 



(b) Active outpatient client records shall be kept 
in the outpatient health record and filed at the 
client's assigned unit. 

(c) Each inpatient program shall maintain active 
inpatient records which shall be kept separate from 
the outpatient records. 



(d) The outpatient record shall be transferred to 
the inpatient unit. 

(e) Information required in other Rules in this 
Subchapter, including but not limited to. prescrib- 
ing and administering medication, and seclusion 
and restraint shall be documented in the client 
record. 

(f) All client record entries shall include the date 
of entry and authentication by the individual 
making the entry. 

(g) The time of service shall be recorded, based 
upon the nature of the service or incident; such as. 
shift notes, medication administration, and acci- 
dents and injuries. 

(h) Ail client record entries shall be legible and 
made in permanent ink or typewritten. 

(i) Alterations in client records, which are 
necessary in order to correct recording errors or 
inaccuracies, shall: 



LD 

£21 

til 
£4) 

£51 



be made by the individual who recorded 

the entry; 

have a single, thin line drawn through 

the error or inaccurate entry with the 

original entry still legible; 

show the corrected entry legibly record- 

ed above or near the original entry; 

show the type of documentation error 

or inaccuracy whenever the reason for 

the alteration js unclear; and 

i nclude the date of correction and ini- 

tials of recorder. 



(j) Each page of the client record shall include 
the client's name and number. 

(k) Client records shall include only those 
symbols and abbreviations contained in an abbrevi- 
ation list approved by the Department. 

{]} Notations in a client's record shall not identi- 
fy another client by name. 

(m) Each service delivery 7 site shall designate, m 
writing, those individuals authorized to have access 
to client records and who may make entries m the 
record. 



(n) Any additional information regarding the 
following shall be included in the client record: 
(1) diagnostic tests, assessments, evalua- 
tion, consultations, referrals, support 
services or medical services provided: 
known allergies or hypersensitivities; 
major events, accidents or medical 
emergencies, involving the client: 
consent for. and documentation of. 



£21 
£31 



£41 
£51 



release of information; 



documentation of applied behavior 
modification, which includes at risk or 
other intrusive interventions, including 



528 



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NORTH CAROLINA REGISTER 



July 1, 1993 



PROPOSED RULES 



161 
ill 

m 



authorization, duration, summaries of 
observation and justification; 
conferences or involvements with the 
client's family, significant others, or 
involved agencies or service providers; 
documentation of attendance in outpa- 
tient service; and 
results of any standardized and non- 



standardized evaluations, such as social, 
developmental, medical, psychological, 
vocational or educational. 



Statutory Authority G.S. 148-1 9(d). 

.2004 CONFIDENTIALITY OF CLIENT 
RECORD 

(a) All information contained in the client record 
shall be considered privileged and confidential, 
with the exception of matters of public record, as 
set forth in 5 NCAC 2D .0600. 

(b) The Department shall ensure confidentiality 
of client records during their use, transportation, 
and storage. 

(c) The Department shall ensure that information 
contained in client records is released upon the 
written authorization of the client, in accordance 
with other Department Rules, or as set forth in the 
provisions of G.S. 122C-55(c). 

(d) Employees governed by the State Personnel 
Act, G.S. Chapter 126, are subject to suspension, 
dismissal or disciplinary action for failure to 
comply with the Rules in this Subchapter. 

(e) The Department shall inform all employees, 
students, volunteers, and all other individuals with 
access to confidential information, the provisions 
of the Rules in this Subchapter. Such individuals 
with access to confidential information shall sign 
a statement of understanding and compliance. 

(f) Records shall be protected against loss, 
tampering, or use by unauthorized persons. 

(g) Records shall be readily accessible to autho- 
rized users at all times. 

Ch) When consent for release of information is 
obtained, a time-limited consent, not to exceed one 
year, shall be utilized. 

Statutory Authority G.S. 148-1 9(d). 

.2005 DIAGNOSTIC CODING 

The Department shall code diagnoses for clients 
using the following diagnostic systems: 

(1) Mental illness or mental retardation shall 

be diagnosed according to the Diagnostic 
and Statistical Manual of Mental Disor- 
ders, 3rd Edition - Revised (DSM-III-R). 



(2) Physical disorders shall be diagnosed 
according to Interational Classification of 
Diseases, 9th Revision, Clinical Modifi- 
cation (ICD-9-CM). 

Statutory Authority G.S. 148-1 9(d). 

.2006 CLIENT RECORD AVAILABILITY 

The Department shall ensure that client records 
are available to professional staff for a minimum 
of three years following the inmate's release. This 
shall apply to previous incarcerations. 

Statutory Authority G.S. 148-1 9(d). 

SECTION .2100 - SERVICE ELIGIBILITY 

.2101 SCOPE 

The Rules in this Section apply to each service 
delivery site within the Department and to any 
other provider of services on a contractual basis. 

Statutory Authority G.S. 148-1 9(d). 

.2102 SERVICE CRITERIA 

The Department shall ensure the development of 
service criteria for mental health and mental 
retardation services. These criteria shall be com- 
municated to inmates and staff. 



Statutory Authority G.S. 148-1 9(d). 

.2103 SCREENTNG 

The Department shall develop a systematic means 
of screening each inmate referred for services to 
determine his need for services, and designate staff 
qualified to make screening determinations. 

Statutory Authority G.S. 148-1 9(d). 

.2104 WAITING LISTS 

The Department shall establish criteria for 
prioritizing service delivery and use of waiting 
lists for mental health and mental retardation 
services. 

Statutory Authority G. S. 148-1 9(d). 

.2105 INFORMATION REGARDING 
AVAILABILITY TO SERVICES 

The Department shall ensure that each inmate is 
informed how to access mental health and mental 
retardation services. 

Statutory Authority G.S. 148-1 9(d). 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



529 



PROPOSED RULES 



SECTION .2200 - TREATMENT AND 
HABILITATION 

.2201 SCOPE 

(a) The Rules in this Section apply to each 
service delivery site within the Department and to 
any other provider of services on a contractual 
basis. 

(b) The process of treatment or habilitation shall 
incorporate activities and procedures that address 
the client's assets and needs from the point of 
initial contact, through active treatment or habilita- 
tion. and after discharge from treatment. 

Statutory- Authority G.S. 148-1 9(d). 

.2202 ADMISSION ASSESSMENT 

(a) An admission note shall be completed within 
24 hours of admission which includes, but need 
not be limited to: 

( 1) reason for admission; 

(2) present condition of the client reported 
in objective, behavioral terms, and 
when possible, a description of the 
client's condition by others; 

(3) diagnostic impression, including a 
provisional or admitting diagnosis; 

(4) determination of and request for addi- 
tional referrals or special diagnostic 
tests, assessments or evaluations, if 
needed; and 

(5) a preliminary individual treatment or 
habilitation plan. 

(b) If clinically indicated, a social, educational, 
medical, criminal, vocational, developmental, and 
psychiatric history shall be completed within 30 
days after admission. 

Statutory Authority G.S. 148-1 9(d). 

.2203 EVALUATION AND DIAGNOSIS 

Each service delivery site shall document, for 
each client, any routine diagnostic tests, assess- 
ments and evaluations, or medical examinations, as 
well as time frames for their completion. 

Statutory Authority G.S. 148-1 9(d). 

.2204 TREATMENT OR HABILITATION 
PLAN 

(a) Each service delivery site shall develop an 
individualized treatment or habilitation plan for 
each client based upon: 

( 1 ) an evaluation of his condition, assets 
and needs; and 



(2) information gathered during the admis- 
sion assessment process. 

(b) The treatment or habilitation plan shall be 
documented in the client record as follows and 
shall: 

(1) provide a systematic approach to the 
treatment or habilitation of the client; 

(2) substantiate the appropriateness of 
treatment or habilitation goals; 

(3) designate clinical responsibility for the 
development and implementation of the 
plan; 

(4) include at least the diagnosis to ensure 
consistency; 

(5) include time-specific measurable goals; 
and 

(6) provide a summary of client, and if 
appropriate, family strengths and weak- 
nesses. 

(c) When medically or clinically indicated, the 
plan shall be: 

(1) revised; and 

(2) reviewed, at least annually, with such 
review documented in the plan. 

(d) The client shall have the opportunity to 
participate in the development and implementation 
of the treatment and habilitation plan. 

Statutory Authority G.S. 148-1 9(d). 

.2205 PROGRESS NOTES 

(a) Progress notes shall be recorded at least on 
a weekly basis in residential and inpatient services 
and following each scheduled appointment in 
outpatient services. 

(b) Progress notes shall reflect the client's 
progress or lack of progress: 

(1) in meeting goals; 

in staff interventions; 



(3) 



(4) 



regarding information which may have 
a significant impact on the client's 
condition; and 

when indicating reviews of relevant 
laboratory reports and actions taken. 



Statutory Authority G. S. 148-1 9(d). 

.2206 TRANSFER OR DISCHARGE 
SUMMARY 

(a) Whenever a client is transferred to a differ- 
ent level of service, a written transfer note by the 
referring unit shall accompany the client summa- 
rizing the client's condition at the time of transfer. 
and any recommendations for continued care. 

(b) A qualified professional in the receiving unit 



530 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



PROPOSED RULES 



shall evaluate the client to determine the need for 
continued treatment or habilitation. 

(c) At the time of discharge, a discharge sum- 
mary shall be completed and shall include: 

(1) the reason for admission; 

(2) course and progress of the client in 
relation to the goals and strategies jn 
the individual treatment or habilitation 
plan; 

condition of the client at discharge; 
recommendations and arrangements for 
further services or treatment; and 
final diagnosis. 



01 

141 

15) 



Statutory Authority G.S. 148-1 9(d). 

.2207 TREATMENT AND HABILITATION 
COORDINATION 

(a) Coordination shall be maintained among all 
staff members contributing to the evaluation, 
planning, and treatment and habilitation efforts for 
each client. 

(b) Each service delivery site, utilizing shifts or 
relief staff, shall develop mechanisms to ensure 
adequate communication among staff regarding 
clients. 

Statutory Authority G.S. 148-1 9(d). 

.2208 RELEASE PLANNING IN 

RESIDENTIAL AND INPATIENT 
SERVICES 

(a) When release of a client can be anticipated 
and the need for continued treatment has been 
identified, each client shall have a written individ- 



ualized aftercare plan, 
(b) The aftercare plan shall: 
(1) be formulated by qualified profession- 
als; 
inform the client of how and where to 



12) 

ill 

141 

15) 
(6) 

<2) 



receive treatment or habilitation servic- 



identify continuing treatment or habili- 
tation needs; addressing issues, such as 
food, housing, and employment; 
indicate the need and the plan, if appli- 
cable, to involuntarily commit (inpatient 
or outpatient); 

involve the respective area program or 
state facility, when indicated; 
address the procurement and availability 
of medication prescribed for mental 
health problems for the released client, 
regardless of his ability to pay; 
address the use and coordination of 



generic resources in the community, 
which may be through Employment 
Security Services, Vocational Rehabili- 
tation Services, community colleges, 
and YMCA; and 
(8) be provided to the client. 

(c) The Department shall designate a qualified 
professional staff member to assist the client in 
establishing contact with the respective area pro- 
gram or state-operated facility. 

(d) The designee shall be responsible for provid- 
ing information to file area program or state- 
operated facility to ensure continuity of treatment 
upon the client's release. 

Statutory Authority G.S. 148-1 9(d). 

SECTION .2300 - CLINICAL SERVICES 

.2301 SCOPE 

(a) The Rules in this Section apply to each 
service delivery site, and to any other provider of 
services on a contractual basis that incorporates 
clinical services in their activities. 

(b) The provision of clinical services shall be 
provided by qualified mental health professionals 
as an essential component of the treatment or 
habilitation process, to include but not limited to: 

(1) individual and group counseling; 

(2) psychotherapy services; 

(3) testing services; and 

(4) specialized therapies of various kinds. 

Statutory Authority G.S. 148-1 9(d). 

.2302 COUNSELESTG AND 

PSYCHOTHERAPY SERVICES 

Individual, group and family counseling, and 
psychotherapy shall be provided by, or under the 
direct supervision of, qualified professionals who 
have received training in these treatment or habili- 
tation modalities. 

Statutory Authority G.S. 148-1 9(d). 

.2303 SPECIALIZED THERAPIES 

The following shall be provided by, or under the 
direct supervision of, staff licensed or registered to 
perform these activities: 

(1) Medical care; 

(2) physical, occupational, or language and 
communication therapy; and 

(3) nursing care. 

Statutory Authority G.S. 148-1 9(d). 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



531 



PROPOSED RULES 



.2304 TESTING SERVICES 

Individuals, who are privileged to utilize the 
particular testing instrument being administered, 
shall perform testing in the areas of: 

(1 ) Psychological; 

(2) developmental; 

(3) educational; and 

(4) intelligence. 

Statutory Authority G.S. 1 48-1 9(d). 

SECTION .2400 - MEDICATION SERVICES 

.2401 SCOPE 

(a) The Rules in this Section apply to each 
service delivery site and to any other provider of 
services on a contractual basis that provide medi- 
cation services, 

(b) Any client who is placed on medication for 
problems associated with mental health and mental 
retardation disabilities and needs shall receive, at 
least, medication services that include, but need 
not be limited to: 

(1) prescribing; 
dispensing; 
administration; 
storage; 
control; and 



13) 
14) 
15) 
16} 



provision of education. 



Statutory Authority G.S. 148-1 9(d). 

.2402 DISPENSING OF MEDICATION 

(a) Medication shall be dispensed, by a pharma- 
cist or physician, in a properly labeled container in 
accordance with state and federal law. 

(b) The medication container shall protect 
medication from light and moisture, and shall be in 
compliance with the Poison Prevention Packaging 
Act. 

Statutory Authority G.S. 148-1 9(d). 

.2403 ADMINISTRATION OF MEDICATION 

(a) Medication shall be administered in accor- 
dance with state and federal law. 



(b) Prescription medication shall be administered 
in service delivery sites only on the order of an 
authorized prescriber. 

(c) Non-prescription medications and standing 
orders shall be administered only on the written 
approval of a physician or person authorized to 
prescribe legend drugs. 

(d) Only properly dispensed medication shall be 
administered. 



(e) Medication shall be administered in inpatient 
psychiatric services only by a physician, physician 
assistant, or nurse. 

(f) In other service delivery sites, medication 
may be either: 

(1) administered by program or correction- 
al staff who have received training by 
the Department; or 

(2) self-administered by any client who has 
received instructions, from either the 
program's physician or designee, about: 

(A) each medication; 

(B) dosage; 

(C) time of administration; and 

(D) side effects and contraindications. 

Statutory Authority 1 G.S. 148-1 9(d). 

.2404 INVOLUNTARY ADMINISTRATION 
OF PSYCHOTROPIC MEDICATION 

(a) Psychotropic medication may be adminis- 
tered to any non-consenting client who is mentally 
ill and receiving inpatient mental health treatment, 
when any one or more of the following conditions 
exist: 

d) failure to treat the client's illness or 
injury would pose an imminent substan- 
tial threat of injury or death to the 
client or those around him; or if 

(2) t here is evidence that the client's condi- 
tion is worsening, and if not treated, is 
likely to produce acute exacerbation of 
a chronic condition that would endanger 
the safety or jife of the client or others; 
and: 

(A) the evidence of substantial and pro- 
longed deterioration is corroborated 
by medical history; and 

(B) the source of the history is document- 
ed in the client's record. 

(b) A medication refusal exists when a client 
refuses to take medication within 30 minutes of the 
initial offer. Any client who accepts medication 
within 30 minutes of the initial offer shall not be 
considered to have refused medication. 



(c) Medication Refusal: 

(1) All incidents of medication refusal shall 
be: 

(A) reported as promptly as possible to 
the psychiatrist who is treating the 
client; and 

(B) documented on progress notes and the 
medication chart by staff responsible 
for administering the medication. 

(2) The administering staff shall attempt to 



532 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



PROPOSED RULES 







determine the reason for refusal by 






cause of the refusal; 






questioning the client and encouraging 
him to accept the medication. Such 
shall be documented in the client's 
record. 




mi 


inform the client of indications for 
psychotropic medication (benefits and 
risks), and the advantages and disad- 
vantages of any alternate courses of 


13] 




Any member of the treatment team 






treatment; and 






shall discuss the reasons for refusal 




IQ 


request his consent. 






directly with the client and attempt to 


m 




The treatment team may also assist in 






resolve those concerns which are the 
source of the refusal before a forced 






efforts to explain the advantages of 
medication to the client. 






medication order is written. 


ih 




The client's record shall contain docu- 


ID 


Initial Emergency Situation: 

In an initial emergency situation the 






mentation that efforts have been made 
to determine the cause of refusal and 




£A) 


physician: 
may initiate procedures and write an 
order for administering emergency 
forced medication, not to exceed 72 
hours; and 


14] 




advantages of medication. 
The physician shall initiate a referral to 
the Involuntary Medication Committee 
if the client continues to refuse medica- 
tion. The Committee shall: 




m 


shall document in the client's record 
the pertinent circumstances and ratio- 
nale for the psychotropic medication. 




IA) 


determine whether the condition as set 
forth in Paragraph (a) exists before 
authorizing an involuntary medication 


(2J 


IA} 


If the physician determines that the 
condition set forth in Paragraph (a)(1) 
of this Rule exists and: 
the medication is a generally accepted 
treatment for the client's condition; 




mi 

IQ 


order; 

apply the criteria set forth in Subpara- 
graphs (d)(1) and (2) in making its 
determination. 
If neither of the conditions set forth in 




m> 


there is a substantial likelihood that 
the treatment will effectively reduce 






Paragraph (a) of this Rule exists, the 
client's refusal to accept the medica- 






the signs and symptoms of the client's 
illness; and 


(f) 


nvo 


tion will be honored, 
luntary Medication Committee: 




IQ 


from a therapeutic viewpoint, the 
proposed medication is the least intru- 
sive of the possible treatments. 
In all cases, the medication shall not 
exceed the dosage expected to accom- 
plish the treatment objective. 


111 




The Involuntary Medication Committee 
shall be appointed by the Chief of 
Mental Health Services and consist of a 
psychiatrist, a psychologist, and a 
mental health nurse who is a Registered 
Nurse. 


13J 


IA) 


Continuation of emergency situation: 
If needed, two subsequent emergency 
periods of 72 hours may be autho- 
rized only after the attending psychia- 
trist has received the written or verbal 




IA1 


If the psychiatrist who issued the 
involuntary medication order is the 
individual who normally sits on the 
committee, another psychiatrist shall 
serve in that capacity. 






concurrence from another psychiatrist 




im 


Other prison staff, who have pertinent 






not currently involved in the client's 






information that may be useful to the 






treatment. 






committee in making its determina- 




im 


Then, if the client continues to refuse 
medication after it is determined that 






tion, shall be required by the commit- 
tee to attend the hearing. 






psychotropic medication is still war- 
ranted, procedures for administering 
medication in a non-emergency situa- 


ill 




In conducting the hearing, the commit- 
tee chairman, appointed by the Chief of 
Mental Health Services, shall ensure 


le] 


Non 


tion shall be implemented. 
-Emergency Situations: 




i£l 


that the client: 
has received written and verbal notice 


0] 


. 


When a client refuses psychotropic 






of the time, date, place, and the pur- 






medication in a non-emergency situa- 
tion, the attending physician shall: 




m 


pose of the hearing; 

is informed of his right to hear evi- 




(A) 


make every effort to determine the 






dence providing the basis for the 


«:7 




NORTH CAROLINA REGISTER 






July 1, 1993 533 



PROPOSED RULES 



involuntary medication, and the right 
to call witnesses in his behalf; 
(C) attends the hearing, unless his clinical 
condition [s such that his attendance is 
not feasible. In this case, the Com- 



ih 



in} 



mittee shall: 

state the reasons for determining 
that the presence of the client is 
not feasible. 
allow the client to be interviewed 



(iii) 



in his room by the client represen- 
tative and one or more members 
of the Committee, if appropriate; 
and 

allow the client representative an 
opportunity to present facts rele- 
vant to whether an involuntary 
medication order should be is- 
sued. 



(D) shall be allowed a reasonable number 
of witnesses, to be determined by the 
committee chairman, or: 
(i) written statements may be consid- 



m 



(El 



ill 



ered in lieu of direct testimony; 
and 

specific client witnesses may be 
excluded from direct testimony if 
the unit superintendent, or desig- 
nee, determines a justifiable secu- 
rity risk would occur if they were 
brought to the hearing site. 
be given the opportunity to question 
any staff who present evidence that 
supports the need to involuntarily 
medicate. 
After the committee has received all 
relevant information, the committee 
shall: 

(A) consider the facts and arrive at a 
majority decision; 

(B) ensure that the authorization to invol- 
untarily medicate shall not exceed 30 
days. 

(C) prepare and file in the client's record 
a written summary of the evidence 
presented and the rationale for the 
decision; and 

(D) consult an attorney from the Attorney 
General's Office, assigned to repre- 
sent the Department, at any time 
questions concerning the legal propri- 
ety of forcibly administering medi- 
cation in a given case. 

(4) If, after the initial 30 day period, invol- 
untary medication is still deemed neces- 



sary, the psychiatrist may again present 
the case to the Involuntary Medication 
Committee which: 

(A) shall conduct a review of the record 
and the reasons presented in support 
of continuing involuntary medication; 
and 

(B) may then authorize the administration 
of involuntary medication for 90 
additional days. Subsequent 90 -day 
periods may be authorized after simi- 
lar reviews. 

(g) Client Representative: 
(1) Whenever a client is recommended for 
forced medication on a non-emergency 
basis, the Mental Health Program Di- 
rector, or his designee, shall appoint a 
member of the treatment staff to serve 
as a Client Representative, whose role 
shall include: 



(A) 



assisting the client in verbalizing the 
reasons for his refusal of psychotropic 
medications in meetings with his 



treatment team; 



(B) providing this information to the 
Involuntary Medication Committee; 
and 

(C) preparing a summary of the reasons 
for the refusal and documenting it in 
the client's record. 

(2) The Client Representative shall appear 
before the Involuntary Medication 
Committee whenever he feels that it is 
in the best interest of the client, or at 
the client's request. 

(3) When reviewing any case involving the 
involuntary administration of medica- 
tion, the Involuntary Medication Com- 
mittee shall consider oral or written 
comments from the Client Representa- 
tive. 

(h) Whenever physical force is actually em- 
ployed, complete documentation of all actions 
relating to the forceful administration of medica- 
tion shall be included in the client's record and 
reported to the Unit Superintendent on a "Use of 
Force Report" (DC-422). 

Statutory Authority G.S. 148-1 9(d). 

.2405 PSYCHOTROPIC MEDICATION 
EDUCATION 

(a) To ensure the client's understanding of 
psychotropic medication, individual or group 
medication education shall be provided to each 



534 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



PROPOSED RULES 



who is to begin receiving, or is to be 
maintained on, psychotropic medica- 
tion; and 

by the prescribing physician, or other 
person approved by the physician; 
Documentation in the client record shall 



client: 



(2) 



reflect that medication education has been provid- 
ed. 

Statutory Authority G.S. 148-1 9(d). 

SECTION .2500 - PROTECTIONS 
REGARDING CERTAIN PROCEDURES 

.2501 SCOPE 

The Rules in this Section specify protections 
regarding the use of certain specified procedures, 
in order to promote dignity and humane care for 
any client receiving mental health and mental 
retardation services. 

Statutory Authority G.S. 148-1 9(d). 

.2502 USE OF SECLUSION 

(a) Seclusion shall be used only under one of the 
following conditions: 

(1) on an emergency basis when it is be- 
lieved necessary to prevent immediate 
harm to the client or to others; or 

(2) on a non-emergency basis when it is 
believed that seclusion will resolve the 
presenting situation, or will produce the 
desired behavioral change, 

(b) Emergency seclusion shall last no longer 
than is necessary to control the client, 

(c) Seclusion shall not exceed seven days with- 
out the review and approval of an internal commit- 
tee in accordance with Paragraph (e) of this Rule, 

(d) Observations, or reviews, of any client |n 
seclusion shall be made as follows: 

(1) Any client placed ]n seclusion will be 
observed no less than 30 minutes; 

(2) A clinician may extend this interval up 
to 60 minutes if, in his clinical opinion, 
such an observation would not affect 
the health, safety or welfare of the 
client; 

(3) Documentation for extending the obser- 
vation shall be placed in the client's 
record; 

(4) Observations by a clinician shall be 
made at least daily, or when the clini- 
cian is not present at the facility, obser- 
vations by a health professional shall be 



reported by telephone to a clinician; 
and 
(5) Reviews by an internal committee shall 
be made in accordance with Paragraph 
(e) of this Rule. 

(e) Committee review: 

(1) If it appears that seclusion may be 
indicated for a period to exceed seven 
days: 

(A) an internal committee consisting of a 
clinician, a nurse or member of the 
medical staff, and a member of the 
administrative staff shall review the 
use of seclusion and interview the 
client; and 

(B) continued use shall not exceed the 
initial seven days without the approval 
of this committee. 

(2) Following its initial review, the com- 
mittee shall review the case at intervals 
not to exceed 30 days. 

(f) When a client is placed in seclusion, his 
client record shall contain the following documen- 
tation: 

(1) the rationale and authorization for the 
use of seclusion, including placement in 
seclusion pending review by the respon- 
sible clinician; 
a record of the observation of the client 



ill 



13] 



141 



as required in Subparagraph (d)(1) of 
this Rule; 

each review by the responsible clinician 
as required in Subparagraph (d)(2) of 
this Rule, including a description of the 
client's behavior and any significant 
changes which may have occurred; and 
each review by the internal committee 
as required in Paragraph (e) of this 
Rule. 



Statutory Authority G.S. 148- 19(d). 

.2503 USE OF RESTRAINT 

(a) Restraint shall be used only under the fol- 
lowing circumstances: 

(1) after less restrictive measures, such as 
counseling and seclusion have been 
attempted, or when clinically deter- 
mined to be inappropriate or inadequate 
to avoid injury to self or others; and 

(2) either: 

(A) upon the order of a clinician to con- 
trol a client who has attempted, 
threatened, or accomplished harm to 
himself or others; or 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



535 



PROPOSED RULES 



(B) upon the authorization of the officer- 
in-charge on an emergency basis 
when believed necessary to prevent 
immediate harm to the client or to 
others. 
(3) When determining if restraint is indicat- 
ed, a clinician shall consider whether 
the client; 

(A) has inflicted an injury to himself or to 
others and, if so^ the nature and 
extent of such injury; or 

(B) through words or gestures, threatens 
to inflict further injury, and the man- 
ner and substance of the threat. 

(b) When a client exhibits behavior indicating 
the use of restraints and under the conditions of 
Paragraph (a) of this Rule, the following proce- 
dures shall be followed: 



client. Observations and interventions shall be 
documented in the client record. 



ill 



If, in the judgment of any staff mem- 
ber, immediate restraint is necessary to 
protect the client or others, the client 
shall be referred immediately to a 
clinician for observation and treatment. 



(2) If there is insufficient time to make the 
referral , or if a clinician is not immedi- 
ately available: 

(A) the staff in charge may employ emer- 
gency use of restraint; 

(B) within four hours of the initial re- 
straint, the client shall be reviewed 
and a restraint order by a clinician. 
This may be accomplished by: 

(i) telephone contact between the 
senior health professional at the 
facility and the clinician; and 

(ii) if such review cannot be obtained, 
the client shall be released from 
restraint. 



(C) a restraint order shall not exceed four 
hours. At the expiration of the re- 
straint order, the client shall be re- 
leased from restraint unless a new 
order is issued; and 

(D) any subsequent order for continuing 
restraint shall be based on: 

£i] the client's present condition and 

behavior; and 
(ii) reasons other than the original 
reasons for restraint, or specifical- 
ly indicate why the original rea- 
sons are considered applicable at 
the time of fhe subsequent order, 
(c) Whenever the client is restrained and subject 
to injury by another client, a professional staff 
member shall remain continuously present with the 



(d) All orders for continuation of restraint shall 
be reviewed and documented in intervals not to 
exceed four hours thereafter, either by personal 
examination or telephone communication between 
health professionals and the responsible clinician. 

(e) All orders of restraint issued or approved by 
a clinician shall include written authorization to 
correctional staff or health professionals to release 
the client when he is no longer dangerous to 
himself or to others. 

(f) The responsible clinician shall be notified 
upon release of a client from restraint. 

(g) Observations or reviews of all clients in 
restraint shall be made as follows: 



ill 

121 



13] 



observations at least every 30 minutes; 
observations every four hours by the 
responsible clinician either personally 
or through reports from health profes- 
sionals; and 

reviews by an internal committee in 

accordance with Paragraph (h) of this 

Rule. 

(h) Committee review: An internal committee 

consisting of three members of the Department's 

clinical and administrative staff, including at least 

one psychologist and one psychiatrist shall review 

cases in which restraints were used beyond four 

hours. The incident will be reviewed and include 

consideration of the following: 

(1 ) the use of appropriate procedures in the 
decision to restrain; 
sufficient indications for the use of 



01 

ill 



restraint; and 



release of the client from restraint at the 
appropriate time, 
(i) When a client is placed in restraint, the client 
record shall contain documentation of the follow- 



ing! 



(1 ) the rationale and authorization for the 
use of restraint including placement in 
restraint pending review by the respon- 
sible clinician; 
a record of the observations of the 



ill 



01 



M] 



client as required in Paragraph (h) of 
this Rule. 

each review by fiie responsible clinician 
as required by this Rule including a 
description of the client and any signifi- 
cant changes which may have occurred; 
and 

each review by the internal committee 
as required in Paragraph (i) of this 
Rule. 



536 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



PROPOSED RULES 



Statutory Authority G. S, 148-19(d). 

.2504 PROTECTIVE DEVICES 

Whenever protective devices are utilized for any 
client, the Mental Health Program Director shall: 
(1) ensure that the: 
(a) necessity for the protective device has 
been assessed and approved by a men- 
tal health professional; 
device shall be applied by a person who 
has been trained in the utilization of 



ib) 
(2) 

Id] 

ill 



protective devices; 

client, using protective devices which 
limits his freedom of movement, is 
observed every two hours; and 
client is given the opportunity for toilet- 
ing and exercising, 
document the utilization of protective 
devices in the client's medical record. 



Statutory Authority G.S. 148-1 9(d). 

.2505 VOLUNTARY REFERRALS AND 
TRANSFERS 

(a) Non-emergency referrals shall be forwarded 
to the mental health or mental retardation profes- 
sional designated to receive such referrals at the 
service delivery site to which the client 

is assigned. 

(b) If the mental health or mental retardation 
professional determines that the client is in need of 
services provided at a residential or inpatient unit, 
the client shall be given: 



ill 

12] 



written notice of the reasons for the 
referral; 



the expected benefits of the treatment to 
be received; and 

his rights as described m Rule .2507 of 
this Subchapter. 

(c) If the client agrees to a voluntary transfer to 
the specified residential or inpatient unit, he will 
be asked to give written consent, with witness by 
a member of the staff. 

(d) If the client refuses to sign the form, yet 
verbally agrees, this fact must be documented by 
two witnesses prior to initiating the transfer to the 
mental health unit. 

(e) The referring mental health or mental retar- 
dation professional shall complete the necessary 
referral forms and arrange for the client's transfer. 

Statutory Authority G.S. 148-1 9(d). 

.2506 INVOLUNTARY REFERRALS AND 
TRANSFERS 



(a) Referrals and transfers to residential or 
inpatient units on an involuntary basis shall occur 
only when the attending clinician determines that: 

(1) a client requires treatment services not 
available at his current service delivery 
site; and 

(2) a transfer over his objections is re- 
quired. 

(b) Non-emergency involuntary referrals: 

(1) IL in the judgment of a qualified pro- 
fessional, the following conditions 
exist: 

(A) a diagnosable mental disorder; and 

(B) determination is made that outpatient 
services are not effective treatment for 



the client. 



12] 



13] 



IA] 

mi 

IQ 



Then, the professional shall give the 
client a written notice of referral for 
transfer, and explain to the client his 
rights in accordance with Rule .2507 of 
this Section. 

If the client does not voluntary consent 
to the referral and transfer, the follow- 
ing steps shall be taken: 
the client shall be provided with the 
time, date and place of a hearing; 
the Mental Health Program Director, 
or his designee, shall contact the 
hearing officer to arrange a hearing; 
and 

a client advisor shall be appointed and 
a hearing conducted in accordance 
with the procedures specified in this 
Rule. 
(c) Emergency involuntary referrals: 

(1) Such referrals shall be implemented 
only: 

(A) when a client has a diagnosable men- 
tal disorder; and 

(B) either: 

(i) presents a substantial risk of harm 
to himself or others, as manifested 
by recent overt acts or expressed 
threats of violence; or 

(ii) is so unable to care for his own 
personal health and safety as to 
create a substantial risk of harm 
to himself; and 

(C) determination is made that outpatient 
services are not effective treatment for 
the client's condition. 

(2) Such referrals shall be made by the 
mental health staff, the unit physician, 
nurse, or officer [n charge after consul- 
tation with the designated mental health 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



537 



WMMri^MMMMt 



PROPOSED RULES 





staff of the receiving unit. 






the inmate has the right to waive the 


£3} 


The officer in charge shall authorize a 






48-hour notice. 




transfer only under the following condi- 


12] 




The hearing officer shall determine the 




tions, and when, in his opinion: 






time, place and site of the hearing, after 


£A] 


the emergency referral criteria has 






considering the relevant factors. 




been met; and 


ill 




The hearing officer shall consider all 


IB) 


reasonable efforts have been made to 
contact the referring mental health 
professional and have failed. 






relevant and non-repetitive evidence, 
justifying or disputing the involuntary 
transfer and that: 


(d) A client who is transferred because he meets 




LAI 


the inmate has a diagnosable mental 


the criteria of an emergency will be afforded a 






disorder; 


hearing ai 


: the receiving unit within ten days of 




IB] 


the inmate requires services that are 


admission 


This hearing will follow the same 






not currently available on an outpa- 


procedures as those outlined in this Rule. 






tient basis; and 


(e) Inmate advisors: 




£C] 


the unit to which the inmate is to be 


ill 


Each client referred for a hearing shall 
have an advisor appointed to assist him 
in preparing for the hearing. 






transferred is better able to provide 
the needed treatment/habilitation 
services than is the currently assigned 


ill 


Each area administrator or institution 






housing unit. 




head shall be responsible for appointing 


(4j 




A copy of the referral form, as well as 




advisors for all units within his jurisdic- 






other relevant written documents, shall 




tion. 






be entered as evidence. 


13} 


Inmate advisors shall be free to advise 
the inmate, independently, and to act 
solely in his behalf; and shall not be 
subject to any harassment, discipline, or 


£5] 




All written documents or verbal infor- 
mation are to be considered confiden- 
tial, in accordance with Department 
policy. 




pressure in connection with such advice 


£61 




The inmate shall not have direct access 




for the inmate. 






to his client record; however, the in- 


14} 


Ex parte attempts to influence the deci- 






mate advisor may: 




sion of the hearing officer shall be 




£A] 


review the client's record presented at 




prohibited. 






the hearing: and 


(f) Hearing officers: The Chief of Mental 




1S1 


consult with the inmate about its use 


Health Services shall recommend, and the Director 






at the hearing and any other matters 


of the Division of Prisons shall appoint sufficient 






which could be relevant at the hear- 


numbers i 


:>f persons to serve as hearing officers 






ing, including the questioning of all 


who shall 








witnesses. 


ffi 


be qualified professionals, neutral and 
independent; 


ill 




The inmate who is being considered for 
transfer, or his advisor, may question 


01 


have the authority to refuse to transfer 
an inmate when, in their judgment, 
such a transfer is not justified. 






any witnesses for the State, including 
mental health or mental retardation 
professionals. 


O) 


ensure and document that an inmate 
advisor has been assigned; 


£81 




The inmate may also present witnesses 
in his own behalf with limitations which 


14} 


conduct a hearing that follows the 






include that: 




procedures as specified in this Rule in 




£A] 


a reasonable number of witnesses will 




a fair and impartial manner; and 






be allowed at the discretion of the 


15] 


determine from evidence presented 






Hearing Officer; 




whether the criteria for emergency or 




£B] 


testimony may be received by confer- 




non-emergency referrals has been met. 






ence telephone call if the hearing is 


(g) Hearing procedures: 






conducted away from the inmate's 


ill 


The hearing shall be conducted no 






assigned unit; 




sooner than 48 hours from the time the 




£Q 


written statements may be entered in 




inmate is given written notice that he is 






lieu of direct testimony; and 




being considered for a referral to a 




ID] 


specific inmate witnesses may be 




residential or inpatient unit; however. 






excluded from direct testimony if a 


538 


8:7 NORTH CAROLINA REGISTER July 1, 1993 



+ 



* 



• 



PROPOSED RULES 



justifiable security risk, as determined 
by a unit superintendent, or designee, 
would occur were they brought to the 
hearing site. 
(9) The hearing officer shall: 

(A) document the results of the hearing, 
summarizing the evidence presented 
and the rationale for his decision; 

(B) communicate the results of the hear- 
ing to the inmate and staff; and 

(C) ensure that a copy of relevant docu- 
ments are placed in the client record. 



(10) The 



The decision to transfer involuntarily is 
valid throughout the duration of the 
stay at any residential or inpatient unit, 
with required 30-day reviews of the 
need for continued treatment or habili- 
tation. 



an 



(12) 



An inmate may be transferred to anoth- 
er like unit without a rehearing: howev- 
er, if he is discharged from residential 
or inpatient services, a rehearing is 
required prior to readmission to that 
level of service. 

At the request of the inmate, his case 
shall be reviewed by a Hearing Officer 
within 90 days after the initial hearing. 
to determine whether the assignment to 
the residential or inpatient unit shall be 
extended or terminated. Subsequent 
reviews thereafter shall take place each 
180 days if requested by the inmate. 



Statutory Authority G.S. 148-1 9(d). 

.2507 TRANSFER TO RESIDENTIAL 
OR INPATIENT UNITS 

All inmates who are considered for transfer to a 
residential or inpatient unit shall have rights which 
include, but need not be limited to: 



01 



m. 

(a) 
(hi 



written notice that transfer to a residential 
or inpatient mental health facility is being 
considered, including a statement of the 
reasons for the referral or transfer; 
a hearing, sufficiently after notice is 
given, to prepare objections, if any; 
opportunity to: 
testify in person; 

present documented evidence; and 
present and question witnesses called by 
the State, except upon a finding not 
arbitrarily made, of good cause, for not 
permitting such presentation, confron- 
tation, or cross-examination ; 



(4) a neutral and independent decision-maker 
who has the authority to refuse admis- 
sion; 

(5) a written statement by the decision-maker 
as to reasons for his decision to refer and 
transfer, with which two psychiatrists or 
psychologists concur; 

(6) qualified and independent assistance from 
an advisor, not necessarily an attorney, to 
assist the inmate in preparing his objec- 
tions; 

(7) periodic review of the continuing need 
for treatment; and 

(8) effective and timely notice of all of the 
above rights. 

Statutory Authority G.S. 148-1 9(d). 

SECTION .2600 - RESEARCH PRACTICES 

.2601 SCOPE 

(a) The Rules in this Section apply to research 
activity or treatment involving direct contact with 
a client. 

(b) An activity or treatment procedure shall be 
considered research when it: 



CD 

ill 



involves a clinical practice that is not 
conventional; or 

is a type of procedure that serves the 
purpose of research only, and does not 
include treatment designed primarily to 
benefit the client. 



Statutory Authority G.S. 148-1 9(d). 

.2602 RESEARCH REVIEW BOARD 

(a) Research that involves a client shall be 
reviewed and approved by a research review board 
established by the Department. 

(b) The research review board shall approve, 
require modification, or disapprove proposed 
research projects subject to the approval of the 
Department. 

(c) Individuals who are not directly associated 
with research projects under consideration shall 
comprise a majority of the review board. 

(d) Each proposed research project shall be 
presented to a research review board as a written 
protocol containing the following information: 

( 1 ) identification of the project and the 
investigator; 

(2) abstract, containing a short description 
of the project; 

(3) statement of objectives and rationale: 
and 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



539 



PROPOSED RULES 



(4} 


description of methodology, including 


services which may include, but need not be 




informed consent if necessary. 


limited to: 


ie) 


Prior to the initiation of each research 


ill 


crisis intervention; 


project 


a research review board shall: 


ill 


telephone crisis services; and 


01 


conduct an initial review of the project; 


ill 


medical and psychiatric back-up. 


ill 


state the frequency with which it will 








review the project after it has been 


Statutory Authority G.S. 148-1 9(d). 




initiated; and 






ill 


hold a review prior to any major chang- 


.2702 


TRAINING OF STAFF 




es being made in research procedures. 


The Department shall ensure that staff who: 


(f) Written minutes of each research board's 


iil 


supervise inmates have been trained to 


meetins 


' shall be maintained and contain documen- 




access and refer to emergency services; 


tation that: 




and 


iil 


risks to the client were minimal and 


ill 


provide emergency services are properly 




reasonable for the benefits to be ac- 




trained. 




crued; 






ill 


client participation was voluntary; 


Statutory^ Authority G.S. 148-1 9(d). 


ill 


unnecessary intrusion on the client was 








eliminated; 


SECTION .2800 - PREVENTION SERVICES 


(4} 


informed consent was obtained; and 






ill 


compliance with confidentiality require- 


.2801 


SCOPE 




ments as contained in .2004 of these 


The 


Department shall develop a process to 




Rules. 


identify 


' inmates who are: 






iil 


at risk for developing mental disorders; 


Statutory Authority G.S. 148-1 9(d). 




and 






121 


provide counseling, education, instruction 


.2603 


CONDITIONS OF CLIENT 




and protective living arrangements to 




PARTICIPATION 




enhance their ability to cope in the prison 


ia] I 


nformed written consent shall be obtained 




environment. 



from each client in a research project as follows : 

(1) documentation that the client has been 
informed of any potential dangers that 
may exist, and that he understands the 
conditions of participation; and 

(2) notice of the client's right to terminate 
participation at any time without preju- 
dicing the treatment he js receiving. 

(b) A copy of the dated, signed consent form 
shall be kept on file. 

Statutory Authority G.S. 148-1 9(d). 

SECTION .2700 - EMERGENCY SERVICES 

.2701 SCOPE 

(a) The Department shall ensure that emergency 
mental health and mental retardation services are 
available to all inmates. 



(b) Emergency services provide: 

( 1) immediate assessment and intervention; 

(2) referral for continuing care after emer- 
gency treatment, for inmates experienc- 
ing acute emotional or behavioral prob- 
lems. 

(c) Emergency services consist of a variety of 



Statutory Authority G.S. 148-1 9(d). 

SECTION .2900 - INPATIENT SERVICES 

FOR INMATES WHO ARE 

MENTALLY ILL 

.2901 SCOPE 

(a) Inpatient units for clients who are mentally 
iU shall provide close supervision by a qualified 
mental health professional on a 24-hour basis. 

(b) The inpatient unit shall be designed to serve 
any client who requires continuous treatment for 
moderate or severe mental illness. 

(c) Client care shall be provided under the 
supervision of a psychiatrist or doctoral level 
psychologist. 

(d) Individuals who, in addition to mental 
illness, have other disorders such as mental retar- 
dation or substance abuse, shall be eligible for 
admission. 

Statutory Authority G.S. 148-1 9(d). 

.2902 HOURS OF OPERATION 

The inpatient unit shall provide services seven 



# 



540 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



PROPOSED RULES 



days per week, 12 months per year. 
Statutory Authority G.S. 148-1 9(d). 

.2903 REQUIRED SERVICES 

(a) Services provided on an inpatient unit shall 
include, but need not be limited to: 
(1) psychiatry; 
psychology; 
nursing; 
social work; 



ill 
(3) 
141 
15] 
16) 



rehabilitation; and 
recreational. 

(b) Multi-disciplinary treatment teams shall be 
developed to oversee the delivery of such services. 



Statutory Authority G.S. 148-1 9(d). 

SUBCHAPTER 14J -TREATMENT OR 
HABILITATION RIGHTS 

SECTION .0200 - PROTECTIONS 
REGARDING CERTAIN PROCEDURES 

.0201 PROHIBITED PROCEDURES 

(a) Each state facility shall develop policies 
relative to prohibited interventions. Such policies 
shall specify: 

(1) those interventions which have been 
prohibited by statute or rule which shall 
include: 

(A) any intervention which would be 
considered corporal punishment under 
G.S. 122C-59; 

(B) the contingent use of painful body 
contact; 

(C) substances administered to induce 
painful bodily reactions exclusive of 
Antabuse; 

(D) electric shock (excluding medically 
administered electroconvulsive thera- 
py): 

(E) insulin shock; and 

(F) psychosurgery. 

(2) those interventions specified in this 
Subchapter determined by the State 
Facility Director to be unacceptable for 
use in the state facility. Such policies 
shall specify interventions prohibited by 
funding sources including the use of 
seclusion or the emergency use of 
isolation time out jn an ICF/MR facili- 

ty_, 

(b) In addition to the procedures prohibited in 
Paragraph (a) of this Rule, the State Facility 



Director shall specify other procedures which shall 
be prohibited. 

Statutory Authority G.S. 122C-51; 122C-57; 
122C-59; 131E-67; 143B-147. 

.0203 GENERAL POLICIES REGARDING 
INTERVENTIVE PROCEDURES 

(a) This Rule governs the policies and require- 
ments regarding the use of the following interven- 
tions: 

(1) seclusion; 

(2) restraint; mechanical restraints (other 
than protective devices as covered m 
Rule .0207 of this Section) including : 

(A) mechanical restraint to a bed, chair or 
other nonmoveable object, or 

(B) ambulatory restraints; 
isolation time out; 

exclusionary time out for more than 15 
minutes; 

time out for more than one hour; 
contingent withdrawal or delay of ac- 
cess to personal possessions or goods to 
which the client would ordinarily be 
entitled; 

consistent deprivation of items or cessa- 
tion of an activity which the client is 
scheduled to receive (other than basic 
necessities); and 
overcorrection which the client resists. 

(b) The State Facility Director shall develop 
policies and procedures for those interventions 
determined to be acceptable for use in the state 
facility. Such policies shall include: 

( 1 ) procedures for ensuring that the compe- 
tent adult client or legally responsible 
person of a minor client or incompetent 
adult client is informed: 

(A) of the general types of intrusive inter- 
ventions that are authorized for use by 
the state facility; and 

(B) that the legally responsible person can 
request notification of each use of an 
intervention as specified in this Rule, 
in addition to those situations required 
by G.S. 122C-62; 

(2) provisions for humane, secure and safe 
conditions in areas used for the inter- 
vention, such as adequate ventilation, 
light, and a room temperature consis- 
tent with the rest of the state facility; 

(3) appropriate attention paid to the need 
for fluid intake and the provision of 
regular meals, bathing, and the use of 



(3) 

(4) 

(5) 

(6) 



(7) 



(8) 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



541 



PROPOSED RULES 



,4, 



the toilet. Such attention shall be docu- 
mented in the client record; and 
procedures for assuring that when an 
intervention as specified in this Rule 
has been used with a client three or 
more times within a 30 day period ta-a 
calendar month , the following require- 
ments are met: 
(A) A treatment/habilitation plan shall be 
developed within ten working days of 
the third intervention. The treat- 
ment/habilitation plan shall include, 
but not be limited to: 
(i) indication of need; 
(ii) specific description of problem 

behavior; 
(iii) specific goals to be achieved and 
estimated duration of procedures; 
(iv) specific early interventions to 
prevent tension from escalating to 
the point of loss of control when- 
ever possible; 
(v) consideration, whenever possible, 
for client's preference for the type 
of restraint to be used; 
(vvi) specific procedure(s) to be em- 
ployed; 
(viiT) specific methodology of the inter- 
vention; 
(v+iiiOmethods for measuring treatment 

efficacy; 
(vtiix)guidelines for discontinuation of 

the procedure: 
(ix) the accompanying positive treat- 
ment or habilitation methods 
which shall be at least as strong 
as the negative aspects of the 
plan; and 
(xi) specific limitations on approved 
uses of the intervention per epi- 
sode, per day and requirements 
for on-site assessments by the 
responsible professional. 
(xii) description of any requirements in 
Rule .0206 of this Section to be 
incorporated into the plan. 
In emergency situations, with the 
approval of the State Facility Direc- 
tor, the treatment/habilitation team 
may continue to use the intervention 
until the planned intervention is ad- 
dressed in the treatment/habilitation 
plan. 

The treatment/habilitation team shall 
explain the intervention and the rea- 



(B) 



(C) 



son for the intervention to the client 
and the legally responsible person, if 
applicable, and document such expla- 
nation in the client record. 

(D) Before implementation of the planned 
intervention, the treatment/habilitation 
team shall approve the treatment/- 
habilitation plan and consent shall be 
obtained as specified in Rule .0210(d) 
in this Section . 

(E) The use of the intervention shall be 
reviewed at least monthly by the 
treatment/habilitation team and at 
least quarterly, if still in effect, by a 
designee of the State Facility Direc- 
tor. The designee of the State Facili- 
ty Director may not be a member of 
the client's treatment/habilitation 
team. Reviews shall be documented 
in the client record. 

(F) Treatment/'habilitation plans which 
include these interventions shall be 
subject to review by the Human 
Rights Committee in compliance with 
confidentiality rules as specified in 10 
NCAC 14G. 

(G) Each treatment/habilitation team shall 
maintain a record of the use of the 
intervention. Such records or reports 
shall be available to the Human 
Rights Committee and internal client 
advocate within the constraints of 10 
NCAC 18D .0215 and G.S. 
L22C-53(g). 

(H) The State Facility Director shall 
follow the Right to Refuse Treatment 
Procedures as specified in Section 
.0300 of this Subchapter. 

(I) The interventions specified in this 
Rule shall never be the sole treatment 
modality designed to eliminate the 
target behavior. The interventions are 
to be used consistently and shall 
always be accompanied by positive 
treatment or habilitation methods. 

(c) Whenever the interventions as specified in 
this Subchapter result in the restriction of a right 
specified in G.S. 122C-62(b) and (d). procedures 
specified in G.S. 122C-62(e) shall be followed. 
Exception to this Rule includes the use of seclu- 
sion, restraint and isolation time out. which is 
regulated in Rule .02046 of this Section. 

(d) The State Facility Director shall assure by 
documentation in the personnel records that state 
facility employees who authorize interventions 



• 



542 



NORTH CAROLINA REGISTER 



July I, 1993 



PROPOSED RULES 



shall be privileged to do so, and state facility 
employees who implement interventions shall be 
appropriately trained in the area of such interven- 
tions, as well as alternative approaches. 

(e) The State Facility Director shall maintain a 
statistical record that reflects the frequency and 
duration of the individual uses of interventions 
specified in this Rule. This statistical record shall 
be made available to the Human Rights Committee 
and the Division at least quarterly. 

Statutory Authority G.S. 122C-51; 122C-53; 
122C-60; 122C-62; 131E-67; 143B-147. 



.0204 



INDICATIONS FOR USE OF 
SECLUSION AND ISOLATION 
TIMEOUT 



-be 



fa) — This Rule delineates the procedures to 
followed for seclu s ion, re s traint and i s olat i on time 



-fee 



>ecdur 



fied in Rule 



out in addition to the procedures specitied in 
.0203 of thi s Section. 

fb) — This Rule govern s the u s e of phy s ical or 
behavioral interventions which are U3cd to termi 
natc a behavior or action in which a client is in 
imminent danger of abuse or injury to self or other 
persons or when s ub s tantial property damage is 
occurring, or which are used a s a mea s ure of 
therapeutic treatment. — Such interventions include: 



seclusion: 



fH- 

(3) r es traint: and 



{%) isolation time out. 

fe-) — The use of s eclu s ion, re s traint and isolation 
time out shall be limited to those s ituation s s peci 
fied in G.S. I22C 60, which include: 

44-) emergency interventions (planned and 

unplanned): and 

{2) therapeutic — treatment — as — s pecified — m 

Rule .0206 of this Section. 
(d) If determined to be acceptable for u s e within 
the state facility, the State Facility Director shall 
e s tablish — written — policie s — aftd — proc e dure s — that 
govern the use of seclusion, restraint and isolation 
time out which s hall include the following: 

{+) process for identifying and privileging 

state facility employees who are autho 
rized to use such interventions: 

f2-) provi s ion s that a qualified or responsi 

ble profe ss ional shall: 
(A) — review the use of the intervention as 
s oon a s po s sible but at lea s t within 
one hour of the initiation of it s u s e: 

iW) verify the inadequacy of les s re s tric 

tive intervention techniques: and 
{€-) — document in th e cli e nt — record cvi 
dencc of approval or disapproval of 



continued U3e. 

0) procedures for documenting the inter 

vention which occurred to include, but 
not be limited to: 
{Aj — the rationale for the use of the inter 
vention — which — aise — addresses — the 
inadequacy of less restrictive interven 
tion techniques: 
f&) — notation of the frequency, intensity, 
and duration of the behavior and any 
precipitating circumstances contribut 
ing to the onset of the behavior: 
{€) — description of the intervention and the 

date, time and duration of its use: 
{©) — estimated amount of additional time 
needed in seclu s ion, restraint or isola 
tion time out: and 
fE) — signature and title of the state facility 
employee responsible for the use of 
the intervention. 

f4) procedure s for the notification of others 

to include: 
fA-) — those to be notified as soon a s po ss i 
ble but no more than 72 hours after 
the behavior ha s been controlled to 
include: 

ftj the treatment/habilitation team, or 

its designee, after each u s e of the 
intervention; 

fH-) a designee of the State Facility 

Director; and 
im) — the — internal — client advocate, — m 
accordance with the provi s ion s of 
G.S. 122C 53(g); and 
fB) — notification in a timely fa s hion of the 
legally responsible person of a minor 
client or an incompetent adult client 
when such notification has been re 
quested. 
(e) — Seclu s ion, re s traint and i s olation time out 
shall not be employed a s puni s hment or for the 
convenience of staff or used in a manner that 
causes harm or undue phy s ical or mental discom 
fort or pain to the client. 

(f) Whenever a client is in seclusion, restraint or 
isolation time out for more than 2 4 continuou s 
hours, the client' s right s , a s s pecified in G.S. 

122C 62, — afe — restricted. The — documentation 

requirement s in thi s Rule shall sati s fy the r e quire 
ments specified in G.S. 122C 62(c) for re s triction 
of rights. 

fg-) — Whenever s eclu s ion, re s traint or i s olation 
time out is used more than three times in a calen 
dar month, a pattern of behavior ha s developed 
and future emergencie s can be rea s onably predict 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



543 



PROPOSED RULES 



e4-. — Therefore, the dangerous behavior can no 
longer be con s idered unanticipated, and emergency 
procedures s hall be addressed a s a planned inter 
vention in the treatment/habilitation plan. 

fh-) — In addition to the requirements in this Rule, 
additional safeguards as specified in Rule .0206 of 
this Section shall be initiated under the following 
conditions: 

wher 



fH- 



m- 



icncvcr a client exceed s s pending 4 
hour s , or more than one episode of 2 4 
or more continuous hours of his time in 
emergency seclusion, restraint or isola 
tion time out during a calendar month; 
©f 



whenever seclusion, restraint or isola 
tion time out is used as a mea s ur e of 
therapeutic — treatment — as — specified — m 
G.S. 122C 60 and is limited to s pecific 
planned — behavioral — interventions — de- 
signed for the extinction of dangerou s , 
aggressive or unde s irable behaviors. 
t+) — The written approval of the State Facility 

Director or his designee shall be required when 

seclusion, restraint or isolation time out is utilized 

for longer than 2 4 continuou s hour s . 
ffj — Standing orders or PRN orders shall not be 

used to authorize the use of s eclu s ion, re s traint or 

i s olation time out. 
(k) The client shall be removed from s eclu s ion. 



out when hi 



restraint or isolation time out when ne no longer 
demonstrates the behavior which precipitated the 
seclusion, restraint or i s olation time out. — In no 
case shall the client remain in seclusion, restraint 
or isolation time out longer than an hour after 
gaining — behavioral control — unless the client — is 
asleep during regularly scheduled sleeping hours. 
If the client is unable to gain s elf control within 
the time frame s pecified in the authorization, a 
new authorization mu s t be obtained. 

fH — Whenever seclusion, restraint or isolation 
time out i s u s ed on an emergency ba s is prior to 
inclusion in the treatment/habilitation plan, the 
following procedure s s hall be followed: 

fH A state facility employee authorized to 

administer emergency interventions may 
employ s uch procedure s for up to 15 
minute s without further authorization. 

f2-) A qualified profes s ional who ha s expo 

rience and training in the use of s eclu 
s ion, re s traint or i s olation time out and 
who ha s been privileged to employ such 
interventions may authorize the contin 
ued u s e of s uch intervention s for up to 
one hour from the time of initial em 
ployment of the — intervention. tf— a 



m- 



qualified professional is not immediate 
ly available to conduct an assessment of 
the client, but after discussion with the 
state facility employee, concurs that the 
intervention is justified for longer than 
15 minutes, he shall verbally authorize 
the continuation of the intervention for 
up to one hour. — The qualified profes 
sional — s hall — observe — and — assess — the 
client within one hour after authorizing 
the continued u s e of the intervention. 
If the intervention needs to be contin 
ued for longer than one hour, the pro - 
fe ss ional — responsible for the client's 
treatment/habilitation — pten — sheH — be 
con s ult e d. 

The responsible professional shall au 
thorize the continued use of seclusion, 
restraint or isolation time out for peri 
od s over one hour. — If the re s ponsible 
professional i s not immediately avail 
able to conduct a clinical assessment of 
the client, but after discus s ion with the 
qualified profe ss ional, concurs that the 
intervention is ju s tified for longer than 
one hour, he may verbally authorize the 
continuation of the intervention until an 
on s ite a ss e ss ment of the client can be 

made. The — responsible professional 

shall meet with and conduct an a ss es s 
ment of the client and write such autho 
rization within 12 hours from the time 
of initial employment of the interven 
tion. 
(m) While the client is in s eclu s ion, re s traint or 

isolation time out, the following precautions shall 

be followed: 

^4-) Whenev e r a client is in seclusion or 

re s traint, — periodic ob s ervation of the 
client — shall — occur at — least — every — 1-S 
minute s , or more often a s necessay, to 
assure the safety of the client. — Appro 
priatc — attention — shall — be paid to the 
provi s ion of regular meal s , bathing and 
the use of the toilet. — Such ob s ervation 
and attention shall be documented in the 
client record. 

(3) Whenever a client i s in isolation time 

out, there shall be a s tate facility em 
ployee — m — attendance — with — ne — oth e r 
immediate responsibility than to moni 
tor the client who i s placed in i s olation 
time out. — There shall be continuou s 
observation and verbal interaction with 
the client when appropriate to prevent 



♦ 



# 



# 



544 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



PROPOSED RULES 



tension from escalating. — Such obscrva 
tion shall be documented in the client 
record, 

(3) When restraint is U3cd in the ab s ence of 

seclusion and the client may be subject 
to injury, a state facility employee shall 
remain present with the client continu 
ously. 
(n) Reviews and reports on the use of seclusion, 

re s traint and isolation time out shall be conducted 

as follows: 



£)- 



-the — State — Feet 



;ility 
designee — s hall — review 



Director 



-aH- 



or 
uses 






3cclu3ion, restraint and isolation time 
out in a timely fa s hion and inve s tigate 

unusual ef — possibly unwarranted 

patterns of utilization; and 

f2-) eaeh — State — Facility — Director — s hall 

maintain — a — leg — which — includes — the 
following information on each use of 
s eclu s ion, re s traint and isolation time 

(A) — name of the client; 

ffr) — name of the responsible professional; 

fGj — date of each intervention; 

fB) — time of each intervention; 

fE) — duration of each intervention; and 

fF) — reason for use of the intervention. 
^Bj — Nothing in this Rule shall be interpreted to 
prohibit the use of voluntary seclusion, re s traint or 
isolation time out at the client's request; however, 
the procedures in Paragraphs (a) through (n) of 
this Rule shall apply. 

Seclusion and isolation time out shall be used 
only: 

01 



(1) 



ill 



in those situations specified in G.S. 
122C-60, which include: 

when the client is in imminent danger 

of causing injury to self or others; 

when substantial property damage is 

occurring; or 

as a measure of therapeutic treatment as 

specified in Rule .0210 of this Section; 

and 
after less restrictive measures have been 
attempted and have proven ineffective. 
Less restrictive measures that shall be 
considered include: 



(a) 

(bj 
(cj 
Id) 



counseling; 

environmental changes; 
education techniques; and 
interruptive or re-direction techniques. 



Statutory Authority G.S. 122C-51; 122C-53; 122C- 
60; 122C-62; 131E-67; 143B-147. 



.0205 INDICATIONS FOR USE OF 
MECHANICAL RESTRAINTS 

(a) Whenever protective devices are utilized for 
clients, the state facility s hall: 

{4-) ensure that the necessity for the protec 

tive device has been a s ses s ed and the 
device applied by a person who ha s 
been trained and clinically privileged in 
the utilization of protective devices; 

(3) frequently observe the client and pro 

vide opportunities for toileting, exer 
cisc, etc. as needed. — Protective devices 
which — limit — the client's — freedom — ef 
movement shall be observed at least 
every two hour s . — Whenever the client 
is restrained and subject to injury by 
another client, a state facility employee 
s hall — remain present with — the client 
continuously. — Observations and inter 
ventions shall be documented in the 
client record; and 

03 document the utilization of protective 

d e vice s — in the client's — nur s ing care 

plan, when applicable, a*d 

trcatment/habilitation plan. 
{b) — In addition to the requirements specified in 
Paragraph (a) of thi s Rule, protective devices used 
for behavioral — control — shaH — comply — with — the 
requirements — specified — m — Rule — .0203 — of this 
Section. 
Restraints shall be used only: 

(1) when the client is in imminent danger of 
causing injury to self or others; or 

(2) as a measure of therapeutic treatment as 
specified in Rule .0210 of this Section; 
and 

(3) after seclusion or isolation time out has 
been attempted, or clinically determined 
and documented to be inappropriate or 
inadequate to avoid injury. 

Statutory Authority G.S. 122C-51; 122C-53; 122C- 
60; 131E-67; 143B-147. 

.0206 PROCEDURES: SECLUSION, 

RESTRAINTS. OR ISOLATION 
TIME OUT 

(a) The — intervention s s pecified in this Rule 

present a significant risk to the client and therefore 
require additional s afeguard s . — The s e procedures 
s hall be followed in addition to the procedures 
specified in Rule .0203 of this Section. 

(b) The following interventions are designed for 
the primary purpose of reducing the incidence of 
aggressive, dangerous or self injurious behavior to 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



545 



PROPOSED RULES 



a level which will allow the use of le ss intrusive 
treatment/habilitation procedure s . — Such intcrvcn 
tions include the use of: 



f+-) seclusion, restraint or isolation time out 

employed as a measure of therapeutic 
treatment: 

•f3-) s eclusion, restraint or isolation time out 

used on an emergency ba s i s more than 
4 hours in a calendar month or more 
than one episode of 2 4 hours: 

f^) unpleasant tasting foodstuffs: 

f4-> planned non attention to specific unde 

s irable behaviors when the target be 
havior is health threatening: 

{£) contingent — deprivation — of any — ba s ic 

necessity: 

f&} contingent application of any noxious 

s ub s tances which — include but arc not 
limited to noise, bad smells or splash 
ing with water: and 

fh any potentially physically painful proee 

dure or stimulus which i s administered 
to the client for the purpose of reducing 
the frequency or intensity of a bchav 



be the 



fei — Such interventions shall never be tftc sole 
treatment modality for the elimination of target 
behavior. The intervention s hall always be aeeom 
panied bv positive treatment or habituation meth 
ods which — include — the deliberate — teaching and 

reinforcement e-f- behavior s which are 

non injurious: — the — improvement — »f — conditions 
as s ociated with non injurious behaviors such as an 
enriched educational and social environment: and 
the — alteration — ef — elimination — of environmental 
conditions — which — are — reliably — correlated — with 
se l f injury. 

td-) — Prior to the implementation of any p l anned 
ttse — of the — intervention — the — following — written 
approvals and notifications shall bo obtained and 
documented in the client record: 



H-H 



^Th 



f=H- 



+**- 



treatment habituation — t e am — shall 
approve the plan. 

Each client whose treatment) habituation 
plan includes interventions with reason 
ably fore s eeable phy s ical con s equence s 
s hall receive an initial medical examina 
tion and periodic planned monitoring by 
a phy s ician. 
The treatment ' habituation — team — sbaH 



inform the internal client advocate that 
the intervention has been planned for 
the client and the rationale for utiliza 
t i on of the intervention. 
hh The treatment habituation — team — sheH 



3) 



explain the intervention and the reason 
for the intervention to the client and the 
legally responsible person, if applica 
b\e-. — The prior written consent of the 
client or his legally responsible person 
shall be obtained except for those s itua 
tions specified in Rule .020 4 (h)(1) in 

this Section. If the client or legally 

responsible person, if applicable, refus 
es the intervention, the State Facility 
Director s hall follow the right to refuse 
treatment proc e dures as specified in this 
Subchapter. 



I 



The — ptefl — s hall — be — reviewed — and 
approved — by — a — review — committee 

de s ignated — by — the State — Facility 

Director. — At l e ast one member of the 
review — committee — s hall — be — qualified 
through — experience — etrt4 — training — t© 
utilize the planned intervention. — No 
member of the review committee shall 
be a member of the client's treatment 
team. 

thj The treatment/habilitation plan may be 

reviewed and approved by the State 
Facility Director, at his option. 

fh If any of the persons or committees 

s pecified in Subparagraphs (d)(1). (2). 
( 4 ). (5). or (6) of this Rule do not 
approve the continued use of a planned 
intervention, the planned intervention 
s hall be terminated. — The State Facility 
Director — s hall — e s tabli s h — m — appeal 
mechanism for the re s olution of any 
disagreement — over — the — ase — ef — the 
intervention. 

fe-) Neither the — consents — nor the approvals 

specified in Paragraph (d) of this Rule shall be 
considered valid for more than six months. — T-he 
treatment/habilitation team shall re evaluate the use 
of the intervention and obtain the client's and 
legally respon s ible person' s con s ent for continued 
use of the intervention. 

fft The plan shall be reviewed at the next 

meeting of the Human Right s Committee within 
the constraints of 10 NCAC 1 4 G .0200. — The 
Committee. — by majority vote, may recommend 
approval or disapproval of the plan to the State 
Facility Director or may abstain from making a 
recommendation. — If the State Facility Director 
doe s not agree with the deci s ion of the Committee. 
the — Committee — may — appeal — the — issue — te — the 
Division in accordance with the provisions of 10 
NCAC 1 4 G .020 8 . 
lg) The intervention shall be used only when the 



546 



8:7 



NORTH CAROLINA REGISTER 



July I, 1993 



PROPOSED RULES 



treatmcnt/habilitation team — has determined and 
documented in the client record the following: 
i4j that the client is engaging in behaviors 

that arc likely to result in injury to self 

or others; 
{3} that other — methods of treatment — er 

habilitation — employing — less — intrusive 

interventions arc not appropriate; 
0) the frequency, intensity and duration of 

the target behavior, and the behavior's 

probable antecedents and consequences; 

uno 



*4>- 



it is likely that the intervention vvi 
enable — the client — to — stop the target 
behavior. 



-sheH 



fh) The — treatmcnt/habilitation — team 

designate a state facility employee to maintain 
accurate and up to date written records on the 
application of the intervention and accompanying 
positive procedures. — These records shall include 
at a minimum the following: 

f4-) data which reflect the frequency, intcn 

sity and duration with which the target 
cd behavior occurs (scientific sampling 
procedures arc acceptable); 

{2) data which reflect the frequency, inten 

sity and duration of the intervention and 
any accompanying po s itive procedures; 
ft no 



m- 



data — which — reflect — the — state — facility 
employees who administered the inter 
ventions. 
{+) — The interventions shall be evaluated at lea s t 
weekly by the treatment team or its designee and 
at lea s t monthly by the Director of Clinical Servic 
cs or the State Facility Director. — The designee of 
the State Facility Director or Director of Clinical 
Service s s hall not be a member of the client's 

treatmcnt/habilitation — team. Reviews — shall — be 

documented in the client record. 



-the 



if) During the use of the intervention. 

Human — Rights — Committee — shall — be — given — the 
opportunity to review the treatmcnt/habilitation 
plan within the con s traint s of 10 NCAC — 14G 
.0209. 

(a) This Rule delineates the procedures to be 
followed for use of seclusion, restraints, or isola- 
tion time out in addition to the procedures speci- 
fied in Rule .0203 of this Section. 

(b) This Rule governs the use of physical or 
behavioral interventions which are used to termi- 
nate a behavior or action in which a client is in 
imminent danger of injury to self or other persons 
or when substantial property damage js occurring, 
or which are used as a measure of therapeutic 



treatment. Such interventions include seclusion, 
isolation time out, and mechanical restraints listed 
in Subparagraphs (a)(1), (2) and (3) of Rule .0203 
of this Section. 

sion, restraints, or isolation time out 
be used when other less restrictive 



{c) Sec 
may only 



alternatives are not feasible, as delineated |n Rules 
.0204 and .0205 of this Section. 

(d) If determined to be acceptable for use within 
the state facility, the State Facility director shall 
establish written policies and procedures that 
govern the use of seclusion, restraints, or isolation 
time out which shall include the following: 

(1) techniques for seclusion, restraints, or 
isolation time out which are written and 



121 



approved; 
provision, to 



both new clinical and 



habilitation staff as part of in-service 
training, and as a condition of contin- 
ued employment, for those authorized 
to use or apply intrusive interventions 
which shall include, but not be limited 
to: 

(A) competency-based training and period- 
ic reviews on the use of seclusion, 
restraints, or isolation time out; and 

(B) skills for less intrusive interventions 
specified in Rules .0203 and .0204 of 
this Section. 

(f) Whenever a client is in seclusion, restraint or 
isolation time out for more than 24 continuous 
hours, the client's rights, as specified in G.S. 
122C-62, are restricted . The documentation 
requirements in this Rule shall satisfy the require- 
ments specified in G.S. 122C-62(e) for restriction 
of rights. 

(g) Whenever seclusion, restraint or isolation 
time out is used more than three times within a 30- 
day period: 

(JJ a pattern of behavior has developed and 
future emergencies can be reasonably 
predicted; and 

(2) dangerous behavior can no longer be 
considered unanticipated, and 

(3} emergency procedures shall be 

addressed as a planned intervention in 

the treatment/habilitation plan. 

(h) In addition to the requirements in this Rule, 

additional safeguards as specified in Rule .0210 of 

this Section shall be initiated whenever: 

(JJ a client exceeds spending 40 hours, or 
more than one episode of 24 or more 
continuous hours of time in emergency 
seclusion, restraint or isolation time out 
during a calendar month; or 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



547 



PROPOSED RULES 



(2) seclusion, restraint or isolation time out 
iv. 

(A) used as a measure of therapeutic 
treatment as specified in G.S. 122C- 
60; and 

(B) limited to specific planned behavioral 
interventions designed for the extinc- 
tion of dangerous, aggressive or 
undesirable behaviors. 

[j] The written approval of the State Facility 
Director or designee shall be required when 
seclusion, restraint or isolation time out is utilized 
for longer than 24 continuous hours. 

(jj Standing orders or PRN orders shall not be 
used to authorize the use of seclusion, restraint or 
isolation time out. 

(k) The client shall be removed from seclusion, 
restraint or isolation time out when: 

( 1 ) the client no longer demonstrates the 
behavior which precipitated the seclu- 
sion, restraint or isolation time out; 



however, 



(2J in 



n no case shall the client remain in 



seclusion, restraint or isolation time out 
longer than an hour after gaining be- 
havioral control; and 
01 if ihs client is unable to gain self-con- 
trol within the time frame specified in 
the authorization, a new authorization 
must be obtained. 
(1) Whenever seclusion, restraints, or isolation 
time out are used on an emergency basis prior to 
inclusion in the treatment/ habilitation plan, the 
following procedures shall be followed: 

(J_) a state facility employee authorized to 
administer emergency interventions may 
employ such procedures for up to 15 
minutes without further authorization. 
(2) a qualified professional may authorize 
the continued use of seclusion, 
restraints, or isolation time out for up 
to one hour from the initial employment 
of the intervention if he_: 

(A) has experience and training in the use 
of seclusion, restraints, or isolation 
time out; and 

(B) has been privileged to employ such 
interventions. 

01 If 3 qualified professional is not imme- 
diately available to conduct a face-to- 
face assessment of the client, but after 
discussion with the state facility em- 
ployee, the qualified professional con- 
curs that the intervention is justified for 
longer than 15 minutes, then he: 



LM 



(!) 



1Q 



(4) 



151 



<^ 



mi 



may verbally authorize the continua- 
tion of the intervention for up to one 
hour; 

shall meet with and assess the client 
within one hour after authorizing the 
continued use of the intervention; and 

shall immediately consult with the 

professional responsible for the 

client's treatment/habilitation plan, if 

the intervention needs to be continued 

for longer than one hour. 

The responsible professional shall 

authorize the continued use of 

seclusion, restraints, or isolation time 

out for periods over one hour. 

If the responsible professional is not 

immediately available to conduct a 

clinical assessment of the client, but 

after discussion with the qualified 

professional concurs that the 

intervention is justified for longer than 

one hour the responsible professional: 

may verbally authorize the 

continuation of the intervention until 

an onsite assessment of the client can 

be made; however, 

if such authorization 



♦ 



cannot be 
obtained, the intervention shall be 
discontinued. 



I 



(6, 



CD 



LM 



If the responsible professional and the 
qualified professional are the same 
person, the documentation requirements 
of this rule can be done at the time of 
the documentation required by 
Subparagraph .0206(d)(5) of this 
Section. 

The responsible professional, or if the 
responsible professional js unavailable, 
the on-service or covering 
professional, shall meet with and assess 
the client within three hours after the 
client is first placed in seclusion, 
restraints, or isolation time out, and 
document jn detail: 
the reasons for continuing seclusion. 



restraints, or isolation time out; and 
the client's response to the interven- 
tion. 
In addition, the responsible professional 
shall provide an evaluation of the 
episode and propose recommendations 
regarding specific means for preventing 
future episodes. Clients who have been 
placed in seclusion, restraints, or 



I 



548 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



PROPOSED RULES 



# 



isolation time out and released in less 
than three hours shall be examined by 
the responsible professional who 
authorized the intervention no later than 
24 hours after the episode. 
(8) Each incident shall be reviewed by the 
treatment team, which shall include 
possible alternative actions and specific 
means for preventing future episodes . 
(m) While the client is in seclusion, restraint or 
isolation time out, the following precautions shall 
be followed: 

(1) Whenever a client is in seclusion: 

(A) periodic observation of the client shall 
occur at least every 15 minutes, or 
more often as necessary, to assure the 
safety of the client. Observation may 
include direct line of sight or the use 
of video surveillance; 

(B) appropriate attention shall be paid to 
the provision of regular meals, 
bathing and the use of the toilet; and 

(C) such observation and attention shall 
be documented in the client record. 



I 



> 



(2) Whenever a client is in restraint, the 
facility must provide: 

(A) the degree of observation needed to 
assure the safety of those placed in 
restraint. The degree of observation 
needed is determined at the time of 
application of the restraint after 
consideration of the following: 

(i) the type of restraint used; 

(ii) the individual patient situation; 

and 
(iii) the existence of any specific 
manufacturer' s warni ng 
concerning the safe use of a 
particular product. 
Observation may include direct line of 
sight or the use of video surveillance. 
In no instance should observation be 
less frequent than at 15-minute 
intervals. 

(B) appropriate attention to the provision 
of regular meals, bathing and the use 
of the toilet; and 

(C) documentation of the above 
observation and attention in the client 
record. 

(3} Whenever a client is in isolation time 

out there shall be: 

(A) a state facility employee in attendance 

with no other immediate responsibility 

than to monitor the client who is 



im 



{£] 



placed in isolation time out; 
continuous observation and verbal 
interaction with the client when 
appropriate to prevent tension from 
escalating; and 

documentation of such observation 
and verbal interaction in the client 
record. 



(n) Reviews and reports on the use of seclusion, 
restraints, or isolation time out shall be conducted 
as follows: 

(1) the State Facility Director or designee 
shall review all uses of seclusion, 
restraints, or isolation time out in a 
timely fashion and investigate unusual 
or possibly unwarranted patterns of 
utilization; and 

(2) each State Facility Director shall 
maintain a log which includes the 
following information on each use of 
seclusion, restraints, or isolation time 
out: 

(A) name of the client; 

(B) name of the responsible professional; 

(C) date of each intervention; 

(D) time of each intervention; 

(E) duration of each intervention. 

(o) Nothing in this Rule shall be interpreted to 
prohibit the use of voluntary seclusion, restraints, 
or isolatio n time out at the client's request; 
however, the procedures in Paragraphs (a) through 
(m) of this Rule shall apply. 

Statutory Authority G.S. 122C-51; 122C-53; 122C- 
57; 122C-60; 122C-62; 131E-67; 143B-147. 

.0207 PROTECTIVE DEVICES 

(a) The state facility shall follow the Rule s in 10 
NCAC 1 4 F .0600, G.S. 122C 57, and G.S. 
Chapter 90, Articles 1, 4 A and 9A when utilizing 
drugs or medication. 

(b) The u s e of experimental drugs or medication 
shall be considered research and shall be governed 
by 10 NCAC 1 4 G .0305 and .0306 and G.S. 
122C 57(f). 

iej — Each state facility which allows the use of 
neuroleptic — medication s — shall — establish — the 
following — policie s — and — procedures — relative — fe 
utilization of such medication s and safeguards for 
prevention of tardive dyskinesia: 

{4-) state — facility — p4an — for — neuroleptic 

medication education; 

<-2-) procedures for obtaining and renewing 

informed con s ent whenever neuroleptic 
drug — therapy — ts — administered — fef — a 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



549 



PROPOSED RULES 



p e riod in excess of ton weeks. — If the 
client's — documented — history' — reflect s 
previous neuroleptic drug therapy for a 
period of ten weeks or more, written 
informed consent will be required prior 
to — initiation of additional — neuroleptic 

drug — therapy. Whenever — consent 

cannot be obtained, the Rules specified 
in Section .0 4 00 of this Subchapter may 
be implemented; 



methods — for mir 



izing — the — risk — ©f 



0^) met 

tardive — dyskinesia — by pre s cribing 

neuroleptic — medication judiciously in 
low doses for short intervals; 

{4} training — aimed — at — education — of state 

facility employees regarding indications 

fef — using — neuroleptic medication. 

expected therapeutic effects e-f 

neuroleptic — medication — ftfrd — common 
s+de — effects — including — indication s — ©f 
tardive dyskinesia; and 

03 procedures for monitoring clients on 

neuroleptic medications — for signs of 

tardive dyskinesia including the 

following: 
{•A} — designation of a standardized rating 

sy s tem; 
<-&) — frequency of client ratings whenever 
tardive dyskinesia is detected or when 

pre existing tardive dyskinesia 

increases in severity; and 
f€4 — training of designated rater s in the 
selected methodology. 
(a) Whenever protective devices that cannot be 
removed at will by the client are utilized for 
clients, the state facility shall: 

(Jj assure that the protective restraint shall 
be used only to promote the client's 
physical safety ; 



(2) 



03 



(4j 



15) 



assure that the factors putting the 

client's physical safety at risk are fully 

explored and addressed in treatment 

planning; 

document the utilization of protective 

devices in the client's nursing care 

plan. when applicable. and 

treatment/habilitation plan; 

document what less restrictive alterna- 



tives were considered, whether those 
alternatives were tried, and why those 
alternatives were unsuccessful; 
assure that the protective restraint is 
used only upon the written order of a 
qualified professional that specifies the 
type of restraint and the duration and 



circumstances under which the protec- 
tive restraint is used; 

(6) assure and document that the staff 
applying the protective restraint is 
properly trained to do so_j 

(7) inspect to ensure that the devices are in 
good repair and free of tears and pro- 
trusions; 

(8) Determine, at the time of application of 
the restraint, the degree of observation 
needed to assure the safety of those 
placed m restraints: 

(A) The type of restraint used, the indi- 
vidual patient situation, and the exis- 
tence of any specific manufacturer's 
warning concerning the safe use of a 
particular product should all be con- 
sidered in determining the degree of 



observation needed. 



IB] 



(21 



(10) 
01} 



Observation may include direct line of 
sight or the use of video surveillance. 
In no instance should observation be 
less frequent than at 30-minute inter- 
vals, 
assure that whenever the client is re- 
strained and subject to injury' by anoth- 
er client, a state facility employee shall 
remain present with the client contin- 
uously; 

assure that the person is released as 
needed, but at least every two hours; 
re-evaluate need for and impact on 
client of protective restraint at least 
every 30 days; and 
( 12) assure that observations and interven- 
tions shall be documented in the client 
record, 
(b) In addition to the requirements specified in 
Paragraph (a) of this Rule, protective devices used 
for behavioral control shall comply with the 
requirements specified in Rule .0203 of this 
Section. 

Statutory Authority G.S. 122C-51: 122C-53: 122C- 
60; 131E-67; 143B-147. 

.0210 INTERVENTIONS REQUIRING 
ADDITIONAL SAFEGUARDS 

(a) The interventions specified in this Rule 
present a significant risk to the client and therefore 
require additional safeguards. These procedures 
shall be followed in addition to the procedures 
specified in Rule .0203 of this Section. 

(b) The following interventions are designed for 
the primary purpose of reducing the incidence of 



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PROPOSED RULES 



aggressive, dangerous or self injurious behavior to 
a level which will allow the use of less intrusive 
treatment/habilitation procedures. Such interven- 
tions include the use of: 



seclusion, restraints, or isolation time 
out employed as a measure of therapeu- 
tic treatment; 

seclusion, restraints, or isolation time 
out used on an emergency basis more 
than 40 hours in a calendar month or 
more than one episode of 24 hours; 
unpleasant tasting foodstuffs; 
planned non-attention to specific unde- 
sirable behaviors when the target be- 
havior is health threatening; 
contingent deprivation of any basic 
necessity; 

contingent application of any noxious 
substances which include but are not 
limited to noise, bad smells or splash- 
ing with water; and 

any potentially physically painful proce- 
dure or stimulus which is administered 
to the client for the purpose of reducing 
the frequency or intensity of a behav- 
ior. 
Such interventions shall never be the sole 
treatment modality for the elimination of target 
behavior. 

(d) The intervention shall always be accompa- 
nied by positive treatment or habilitation methods 
which shall include, but not be limited to: 

(1) the deliberate teaching and reinforce- 
ment of behaviors which are non-injuri- 
ous; 

the improvement of conditions associat- 
ed with noninjurious behaviors such as 
an enriched educational and social 
environment; and 
the alteration or elimination of environ- 



ill 



ill 



01 
141 



(5) 
161 

ill 



icj 



ill 



ill 



mental conditions which are reliably 
correlated with self-injury. 
(d) Prior to the implementation of any planned 
use of the intervention the following written 
approvals and notifications shall be obtained. 
Documentation in the client record shall include: 
(1 ) approval of the plan by the treatment/- 
habilitation team; 

whose 



(2) that each client 



treatment/- 



habilitation plan includes interventions 



ill 



with reasonably foreseeable physical 
consequences shall receive an initial 
medical examination and periodic 
planned monitoring by a physician; 
that the treatment/habilitation team shall 



inform the internal client advocate that 
the intervention has been planned for 
the client and the rationale for utili- 
zation of the intervention. 

(4) the treatment/habilitation team shall 
explain the intervention and the reason 
for the intervention to the client and the 
legally responsible person, if applica- 
ble. 

(5) the prior written consent of the client or 
his legally responsible person shall be 
obtained except for those situations 
specified in Rule .0206(h)(1) in this 
Section. If the client or legally respon- 
sible person refuses the intervention, 
the State Facility Director shall follow 
the right to refuse treatment procedures 
as specified in this Subchapter; 

(6) that the plan shall be reviewed and 
approved by a review committee, desig- 
nated by the State Facility Director, 
which shall include that: 

(A) at least one member of the review 
committee shall be qualified through 
experience and training to utilize the 
planned intervention; and 

(B) no member of the review committee 
shall be a member of the client's 



treatment team . 



1Z1 



181 



that the treatment/habilitation plan shall 
be reviewed and approved by the State 
Facility Director; 

if any of the persons or committees 
specified in Subparagraphs (d)(l ), (2), 
(4), (5), or (6_1 of this Rule do not 
approve the continued use of a planned 
intervention, the planned intervention 
shall be terminated. The State Facility 
Director shall establish an appeal mech- 
anism for the resolution of any dis- 



agreement over the use of the interven- 
tion. 

(e) Neither the consents nor the approvals 
specified in Paragraph (d) of this Rule shall be 
considered valid for more than six months. The 
treatment/habilitation team shall re-evaluate the use 
of the intervention and obtain the client's and 
legally responsible person's consent for continued 
use of the intervention. 

(f) The plan shall be reviewed at the next meet- 
ing of the Human Rights Committee within the 
constraints of 10 NCAC 14G .0209. The Commit- 
tee, by majority vote, may recommend approval or 
disapproval of the plan to the State Facility Direc- 
tor or may abstain from making a recommenda- 



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551 



PROPOSED RULES 



tion. If the State Facility Director does not agree 
with the decision of the Committee, the Committee 
may appeal the issue to the Division in accordance 
with the provisions of 10 NCAC 14G .0208. 

(g) The intervention shall be used only when the 
treatment/habilitation team has determined and 
documented i_n the client record the following: 

(1 ) that the client is engaging in behaviors 
that are likely to result in injury to self 
or others; 

(2) that other methods of treatment or 
habilitation employing less intrusive 
interventions are not appropriate; 
the frequency, intensity and duration of 
the target behavior, and the behavior's 
probable antecedents and consequences; 
and 

jt is likely that the intervention will 
enable the client to stop the target 
behavior. 



£3} 



ii) 



(h) The treatment/habilitation team shall desig- 
nate a state facility employee to maintain accurate 
and up-to-date written records on the application of 
the intervention and accompanying positive proce- 
dures. These records shall include at a minimum 
the following: 

(1 ) data which reflect the frequency, inten- 
sity and duration with which the target- 
ed behavior occurs (scientific sampling 
procedures are acceptable); 

(2) data which reflect the frequency, inten- 
sity and duration of the intervention and 
any accompanying positive procedures; 
and 

(3) data which reflect the state facility 
employees who administered the inter- 
ventions. 

(i) The interventions shall be evaluated at least 
weekly by the treatment team or its designee and 
at least monthly by the Director of Clinical Servic- 
es or the State Facility Director. The designee of 
the State Facility Director or Director of Clinical 
Services shall not be a member of the client's 



treatment/habilitation team. 



Reviews shall be 



documented in the client record. 



(j) During the use of the intervention, the 
Human Rights Committee shall be given the 
opportunity to review the treatment, habilitation 
plan within the constraints of K) NCAC 14G 
.0209. 

Statutory Authority G.S. 122C-51; I22C-53; 122C- 
60; 122C-62; 131E-67; 143B-147. 

SUBCHAPTER 14L - LICENSURE 



RULES FOR MENTAL HEALTH 
FACILITIES 

SECTION .0400 - PSYCHOSOCIAL 

REHABILITATION FACILITIES FOR 

LNDIVIDUALS WHO ARE 

CHRONICALLY MENTALLY ILL 

.0407 EMPLOYMENT SERVICES 

(a) Each facility shall provide or secure through 
the Division of Vocational Rehabilitation Services 
transitional or supported employment services to 
facilitate client entry into competitive employment. 
Full use shall be made of existing community 
resources to accomplish this including applying for 
funds available from Division of Vocational Reha- 
bilitation Services. 

(b) When supported employment services are 
provided by the facility, the following require- 
ments shall be met: 

(1) Each client shall be one for whom 
competitive employment has not tradi- 
tionally occurred or has been interrupt- 
ed or intermittent as a result of severe 
mental illness. 



I 



m- 



Each client s hall be employed in an 



integrated work setting for twenty or 
more hour s per week . 
(32) Supported employment may be provid- 
ed through: 

(A) work stations for a group of eight or 
fewer workers trained and supervised 
in an industry or business; 

(B) job coaching and supervision of indi- 
viduals in an industry or business; 

(C) mobile crew service jobs by a group 
of eight or fewer workers in the 
community under the training and 
supervision of a crew leader; and 

(D) small business enterprises operated 
with eight or fewer workers with 
training and supervision provided on 
site. 

(c) When transitional employment services are 
provided by the facility, the following require- 
ments shall be met: 

( 1 ) There shall be a contract between the 
facility and employer for a specific job 
and the job shall first be performed by 
a facility staff member to determine the 
technical requirements of the job. 

(2) The selection of a client to fill a place- 
ment is the responsibility of the facility 
and the individual client. 

(d) Wages shall be paid in accordance with the 



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PROPOSED RULES 



Fair Labor Standards Act for all clients receiving 
supported employment and transitional employment 
services. 

Statutory Authority G.S. 122C-26; 143B-147. 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the DHR/Division of Medical 
Assistance intends to adopt rule cited as 10 NCAC 
26B .0112. The agency has requested that this 
adoption (Psychiatric Admission Criteria for 
Medicaid Beneficiaries Under Age 21) be inserted 
as 10 NCA C 26B . 01 12 and the existing 26B .0112 
and all other subsequent numbers in Section .0100 
of Chapter 26B be renumbered accordingly. 

1 he proposed effective date of this action is 
October 1. 1993. 

1 he public hearing will be conducted at 1:30 
p.m. on August 2, 1993 at the North Carolina 
Division of Medical Assistance, 1985 Umstead 
Drive, Room 132, Raleigh, NC 27603. 

Reason for Proposed Action: This rule is needed 
to establish Medicaid criteria for Admissions of 
children and adolescents under age 21 for inpa- 
tient psychiatric services. 

Ksomment Procedures: Written comments con- 
cerning this adoption must be submitted by August 
2, 1993, to: Division of Medical Assistance, 1985 
Umstead Drive, Raleigh, NC 27603 ATTN: Clar- 
ence Ervin, APA Coordinator. Oral comments 
may be presented at the hearing. In addition, a 
fiscal impact statement is available upon written 
request from the same address. 

CHAPTER 26 - MEDICAL 
ASSISTANCE 

SUBCHAPTER 26B - MEDICAL 
ASSISTANCE PROVIDED 

SECTION .0100 - GENERAL 
.0112 PSYCHIATRIC ADMISSION 
CRITERIA/MEDICAID 
BENEFICIARIES UNDER AGE 21 

Medicaid criteria for the admission of children 



and adolescents under age twenty-one (21) to 
psychiatric hospitals or psychiatric units of general 
hospitals is limited herein. To be approved for 
admission, the patient must meet criteria ( 1 ), (2) 
and (3) as follows: 



ill 



Client meets criteria for one or more 
DSM-III-R (Diagnostic and Statistical 
Manual of Mental Disorders, Third Edi- 



Ql 
(a) 



ffi 



iiil 



tion-Revised— a manual whose purpose is 
to provide clear descriptions of diagnostic 
categories in order to enable clinicians 
and investigators to diagnose, communi- 
cate about, study, and treat various men- 
tal disorders) diagnoses; and 
At least one or more of the following 
criteria: 
Client is presently a danger to self 
(e.g., engages in self-injurious behav- 
ior, has a significant suicide potential, 
or is acutely manic). This usually 
would be indicated by one of the fol- 
lowing: 
Client has made a suicide attempt or 
serious gesture (e.g., overdose, hang- 
ing, jumping from or placing self in 
front of moving vehicle, self-inflicted 
gunshot wound), or is threatening 
same with likelihood of acting on the 
threat, and there is an absence of the 
appropriate supervision or structure to 
prevent suicide. 

Client manifests a significant 
depression, including current contem- 
plation of suicide or suicidal ideation, 
and there is an absence of the appro- 
priate supervision or structure to 
prevent suicide. 
Client has a history of affective 



(iiil 

disorder: 

(A) with mood which has fluctuated to 
the manic phase, or 

(B) has destabilized due to stressors 
or non-compliance with treatment. 

(iv) Client js exhibiting self-injurious 

behavior (cutting on self, burning 

self) or is threatening same with 

likelihood of acting on the threat; or 

(b) Client engages in actively violent, 

aggressive or disruptive behavior or 

client exhibits homicidal ideation or 

other symptoms which indicate he/she 

js a probable danger to others. This 

usually would be indicated by one of 

the following: 

(i) Client whose evaluation and treatment 



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553 



....... — ..... 



PROPOSED RULES 



cannot be carried out safely or 
effectively in other settings due to 
impulsivity, impaired judgment, 
severe oppositionalism. running away. 
severely disruptive behaviors at home 
or school, self-defeating and self- 
endangering activities, antisocial 
activity, and other behaviors which 
may occur in the context of a 
dysfunctional family and may also 
include physical, psychological, or 
sexual abuse. 
(ii) Client exhibits serious aggressive, 
assaultive, or sadistic behavior that is 
harmful to others (e.g., assaults with 
or without weapons, provocations of 
fights, gross aggressive over-reactivity 
to minor irritants, harming animals) 
or is threatening same with likelihood 
of acting on the threat. This behavior 
should be attributable to the client's 
specific DSM-III-R diagnosis and can 
be adequately treated only in a 
hospital setting; or 

(c) Acute onset of psychosis or severe 
thought disorganization or clinical 
deterioration in condition of chronic 
psychosis rendering the client 
unmanageable and unable to cooperate 
in treatment. This usually would be 
indicated by the following: Client has 
recent onset or aggravated psychotic 
symptoms (e.g., disorganized or 
illogical thinking, hallucinations- 
bizarre behavior, paranoia, delusions, 
incongruous speech, severely impaired 
judgment) and is resisting treatment or 
is in need of assessment in a safe and 
therapeutic setting: or 

(d) Presence of medication needs, or a 
medical process or condition which is 
life-threatening (e.g.. toxic drug level) 
or which requires the acute care setting 
for its treatment. This usually would 
be indicated by one of the following: 

(i) Proposed treatments require close 
medical observation and monitoring to 
include, but not limited to. close 
monitoring for adverse medication 
effects, capacity for rapid response to 
adverse effects. and use of 
medications i_n clients with 
concomitant serious medical 
problems. 

(ii) Client has a severe eating disorder or 



substance abuse disorder which 
requires 24-hour-a-day medical 
observation. supervision, and 
intervention, 
(iii) Client has Axis I and/or Axis II 
diagnosis, with a complicating or 
interacting Axis III diagnosis, the 
combination of which requires 
psychiatric hospitalization in keeping 
with any one of these criteria.and 
with the Axis III diagnosis treatable in 
a psychiatric setting (e.g.. diabetes- 
malignancy, cystic fibrosis); or 
(e) Need for medication therapy or 
complex diagnostic evaluation where 
the client's level of functioning 
precludes cooperation with the 
treatment regimen, including forced 
administration of medication. This 
usually would be indicated by one of 
the following: 
(i) Client whose diagnosis and clinical 
picture is unclear and who requires 24 
hour clinical observation and 
assessment by a multi-disciplinary 
hospital psychiatric team to establish 
the diagnosis and treatment 
recommendations. 



I 



(ii) Client is involved in the legal system 
(e.g.. in a detention or training school 
facility) and manifests psychiatric 
symptoms (e.g.. psychosis, 
depression. suicide attempts or 
gestures ) and requires a 
comprehensive assessment in a 
hospital setting to clarify the diagnosis 
and treatment needs; and 
(3) To meet the federal requirement at 42 

CFR 441. 152. all of the following must 

apply: 

(a) Ambulatory care resources available in 
the community do not meet the 
treatment needs of the recipient. 

(b) Proper treatment of the recipient's 
psychiatric condition requires services 
on an inpatient basis under the direction 
of a physician. 

(c) The services can reasonably be 
expected to improve the recipient's 
condition or prevent further regression 
so that services will no longer be 
needed. 

Authority G.S. 108A-25(bj; 108A-54; 42 C.F.R. 
441. Subpart D; 42 C.F.R. 441.151. 



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PROPOSED RULES 



TITLE 11 - DEPARTMENT OF INSURANCE 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Department of 
Insurance intends to amend rule cited as 1 1 NCA C 
16 .0205. 

1 he proposed effective date of this action is 
October 1,1993. 

Instructions on How to Demand a Public Hearing: 
A request for a public hearing must be made in 
writing, addressed to Ellen K. Sprenkel, N. C. 
Department of Insurance. P. O. Box 26387, 
Raleigh, N. C. 27611. This request must be 
received within 15 days of this notice. 

IXeason for Proposed Action: Clarification 
necessary to resolve misinterpretation of current 
language by insurance companies. 

(comment Procedures: Written comments may be 
sent to Walter James, Actuarial Services, P. O. 
Box 26387. Raleigh. N.C. 27611. Anyone having 
questions may call Walter James at (919) 733-3284 
or Ellen K. Sprenkel at (919) 733-4529. 

CHAPTER 16 ACTUARIAL SERVICES 
DIVISION 

SECTION .0200 - INDIVIDUAL ACCIDENT 
AND HEALTH INSURANCE 

.0205 DATA REQUIREMENTS FOR RATE 
REVISION SUBMISSION 

With respect to any individual accident and 
health insurance policy governed by Articles 1 
through 64 of Chapter 58 for which an adjustment 
of premium rate to in force policies is allowed by 
law, the insurer shall submit an actuarial memo- 
randum describing and demonstrating the develop- 
ment of any requested premium rate revision. The 
actuarial memorandum shall contain a subsection 
clearly identified as "Additional Data Require- 
ments." The initial rate revision filing shall be 
submitted to and stamped received by the 
Department's Life and Health Division. An 
insurer shall submit all data required by this Rule 
within 45 days after the date that the initial rate 
revision filing is stamped received. Subsequent 
data submissions on incomplete initial rate revision 
filings shall be made directly to the Department's 



Actuarial Services Division within the 45 day 
period. An insurer may continue to submit data in 
accordance with data submission procedures 
followed before the effective date of this Rule for 
a period not to exceed one year after the effective 
date of this Rule if an authorized officer of the 
insurer certifies to the Commissioner that the 
insurer's current information system cannot 
assemble data as required by this Rule. The data 
required in the "Additional Data Requirements" 
subsection shall include: 

(1) Identification of the submitted data as 
North Carolina or countrywide and 
consistent use of this data identification 
throughout this Section. 

(2) Identification of all policy forms by 
approved North Carolina policy form 
number. 

(3) The month, year, and percentage amount 
of all previous rate revisions. 

(4) The month and year that the rate revision 
is scheduled to be implemented 
(hereinafter referred to as the 
"implementation date"). 

(5) The type of renewability provision 
contained in each policy form, e.g. 
guaranteed renewable. 

(6) The type of coverage provided by each 
policy form, e.g. medical expense. 

(7) The National Association of Insurance 
Commissioners minimum guideline loss 
ratio and, if different, the insurer's 
minimum guideline loss ratio. 

(8) The average annual premium for North 
Carolina and countrywide before and 
after the implementation of the rate 
revision. 

(9) The number of North Carolina and 
countrywide policyholders affected by the 
rate revision. 

(10) The requested rate revision percentage 
attributable to experience. 

(11) The requested rate revision percentage 
attributable to changes in benefits 
promulgated by Medicare, if applicable. 

(12) Identification and actuarial justification of 
all groupings of policy forms. 

(13) The historical calendar year earned 
premium subdivided by duration and 
expressed on an actual and a current 
premium rate basis for the period of time 
from the earliest date that experience is 
recorded to the most recent date 
experience is recorded. 

(14) The "expected" incurred lo s s ratio s for 



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PROPOSED RULES 



duration — ette — through — the — duration 
selected by the insurer which doe s not 
exceed the duration coinciding with the 
fifth year following the implementation 
date. The "expected" incurred loss ratios 
by duration based upon original pricing 
assumptions for duration one through the 
latest duration contained within the fifth 
year following the implementation date. 

(15) The "expected" lapse rates for duration 
one through the duration selected by the 
insurer — which — doc s — not — exceed — the 
duration coinciding with the fifth year 
following the implementation date. The 
"expected" lapse rates by duration based 
upon original pricing assumptions for 
duration one through the latest duration 
contained within the fifth year following 
the implementation date. 

(16) The "actual" lapse rates for duration one 
through the duration coinciding with the 
calendar year for which the most recent 
experience is recorded. 

(17) The historical calendar year incurred 
claims, for other than Medicare 
supplement insurance, covering the 
period of time from the earliest date that 
experience is recorded to the most recent 
date experience is recorded. 

(18) The historical calendar year incurred 
claims, for Medicare supplement 
insurance, expressed on an actual and a 
current benefit level basis covering the 
period of time from the earliest date 
experience is recorded to the most recent 
date experience is recorded. 

(19) An estimation of the amount of policy 
year exposure contributed by all policy- 
holders within each calendar year of data 
provided. 

(20) A statement declaring whether this is an 
open block of business or a closed block 
of business. 

(21) An estimation of the annual earned pre- 
mium on new issues for the period of 
time from the date that the most recent 
experience is last recorded to a date not 
exceeding the fifth year following the 
implementation date. 

(22) The number of months that the rate will 
be guaranteed to an individual policy- 
holder. 

(23) The rate revision implementation method, 
such as the next premium due date fol- 
lowing a given date, the next policy 



anniversary date, or otherwise; if other- 
wise, an explanation must be included. 

(24) A statement declaring the month and year 
of the earliest anticipated date of the next 
rate revision. 

(25) An explanation and actuarial justification 
of the apportionment of the aggregate 
rate revision within each policy form or 
between policy forms that have been 
grouped; and a demonstration that the 
apportionment of the aggregate rate 
revision yields the same premium income 
as if the rate revision had been applied 
uniformly. 

(26) An explanation and actuarial justification, 
if applicable, for changing any factor that 
affects the premium. 

(27) An explanation of the effect that the rate 
revision will have on the incurred loss 
ratio on those policies in force for three 
years or more as exhibited in the Medi- 
care Supplement Experience Exhibit of 
the Annual Statement. 

(28) The name, address, and telephone num- 
ber of an insurance company representa- 
tive who will be available to answer 
questions relating to the rate revision. 

Statutory Authority G.S. 58-2-40(1); 58-51-95; 
58-63-15(7)b. 

TITLE 15 A - DEPARTMENT OF 

ENVIRONMENT, HEALTH, AND 

NATURAL RESOURCES 

ISotice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Environmental Man- 
agement Commission intends to amend rules cited 
as 15A NCAC 2B .0216 and .0311. 

1 he proposed effective date of this action is 
February 1, 1994. 

1 he public hearing will be conducted at 7:00 
p.m. on September 2, 1993 at the Sampson County 
Courthouse, 2nd Floor Courtroom, Main Street, 
Clinton, NC. 

MVeason for Proposed Action: To amend the 
surface water quality classifications of streams in 
the Cape Fear River Basin. Tlie proposal is to 
designate a portion of the Black River Basin as 



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PROPOSED RULES 



Outstanding Resource Waters. 

Isomment Procedures: All persons interested in 
these matters are invited to attend. Comments, 
statements, data and other information may be 
submitted in writing prior to, during or within 30 
days after the hearing or may be presented verbal- 
ly at the hearing. Verbal statements may be 
limited at the discretion of the hearing officer. 
Submittal of written copies of verbal statements is 
encouraged. 

CHAPTER 2 - ENVIRONMENTAL MAN- 
AGEMENT 

SUBCHAPTER 2B - SURFACE WATER 
STANDARDS: MONITORING 

SECTION .0200 - CLASSIFICATIONS AND 

WATER QUALITY STANDARDS 

APPLICABLE TO SURFACE WATERS OF 

NORTH CAROLEVA 

.0216 OUTSTANDESfG RESOURCE 
WATERS 

(a) General. In addition to the existing classifi- 
cations, the Commission may classify certain 
unique and special surface waters of the state as 
outstanding resource waters (ORW) upon finding 
that such waters are of exceptional state or national 
recreational or ecological significance and that the 
waters have exceptional water quality while meet- 
ing the following conditions: 

(1) there are no significant impacts from 
pollution with the water quality rated as 
excellent based on physical, chemical 
or biological information; 

(2) the characteristics which make these 
waters unique and special may not be 
protected by the assigned narrative and 
numerical water quality standards. 

(b) Outstanding Resource Values. In order to 
be classified as ORW, a water body must exhibit 
one or more of the following values or uses to 
demonstrate it is of exceptional state or national 
recreational or ecological significance: 

(1) there are outstanding fish (or commer- 
cially important aquatic species) habitat 
and fisheries; 

(2) there is an unusually high level of 
water-based recreation or the potential 
for such recreation; 

(3) the waters have already received some 
special designation such as a North 



Carolina or National Wild and Scenic 
River, Native or Special Native Trout 
Waters, National Wildlife Refuge, etc, 
which do not provide any water quality 
protection; 

(4) the waters represent an important com- 
ponent of a state or national park or 
forest; or 

(5) the waters are of special ecological or 
scientific significance such as habitat 
for rare or endangered species or as 
areas for research and education. 

(c) Quality Standards for ORW. 
(1) Freshwater: Water quality conditions 
shall clearly maintain and protect the 
outstanding resource values of waters 
classified ORW. Management strate- 
gies to protect resource values will be 
developed on a site specific basis dur- 
ing the proceedings to classify waters as 
ORW. At a minimum, no new dis- 
charges or expansions of existing dis- 
charges will be permitted, and storm- 
water controls for all new development 
activities requiring an Erosion and 
Sedimentation Control Plan in accor- 
dance with rules established by the NC 
Sedimentation Control Commission or 
an appropriate local erosion and sedi- 
mentation control program will be 
required to control storm water runoff as 
follows: 

(A) Low Density Option: Developments 
which limit single family develop- 
ments to one acre lots and other type 
developments to 12 percent built-upon 
area, have no stormwater collection 
system as defined in 15A NCAC 2H 
.1002(13), and have built-upon areas 
at least 30 feet from surface water 
areas will be deemed to comply with 
this requirement, unless it is deter- 
mined that additional runoff control 
measures are required to protect the 
water quality of Outstanding Resource 
Waters necessary to maintain existing 
and anticipated uses of those waters, 
in which case such additional storm- 
water runoff control measures may be 
required on a case-by-case basis. 

(B) High Density Development: Higher 
density developments will be allowed 
if stormwater control systems utilizing 
wet detention ponds as described in 
15A NCAC 2H .1003(i), (k) and (1) 



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PROPOSED RULES 



are installed, operated and maintained 
which control the runoff from all 
built-upon areas generated from one 
inch of rainfall, unless it is deter- 
mined that additional runoff control 
measures are required to protect the 
water quality of Outstanding Resource 
Waters necessary to maintain existing 
and anticipated uses of those waters, 
in which case such additional storm- 
water runoff control measures may be 
required on a case-by-case basis. The 
size of the control system must take 
into account the runoff from any 
pervious surfaces draining to the 
system. 
(2) Saltwater: Water quality conditions 
shall clearly maintain and protect the 
outstanding resource values of waters 
classified ORW. Management strate- 
gies to protect resource values will be 
developed on a site-specific basis dur- 
ing the proceedings to classify waters as 
ORW. At a minimum, new develop- 
ment will comply with the low density 
options as specified in the Stormwater 
Runoff Disposal rules [15A NCAC 2H 
.1003 (a)(2)] within 575 feet of the 
mean high water line of the designated 
ORW area. New non-discharge permits 
will be required to meet reduced load- 
ing rates and increased buffer zones, to 
be determined on a case-by-case basis. 
No dredge or fill activities will be 
allowed where significant shellfish or 
submerged aquatic vegetation bed re- 
sources occur, except for maintenance 
dredging, such as that required to main- 
tain access to existing channels and 
facilities located within the designated 
areas or maintenance dredging for 
activities such as agriculture. A public 
hearing is mandatory for any proposed 
permits to discharge to waters classified 
as ORW. 
Additional actions to protect resource values will 
be considered on a site specific basis during the 
proceedings to classify waters as ORW and will be 
specified in Paragraph (e) of this Rule. These 
actions may include anything within the powers of 
the commission. The commission will also consid- 
er local actions which have been taken to protect 
a water body in determining the appropriate state 
protection options. Descriptions of boundaries of 
waters classified as ORW are included in Para- 



graph (e) of this Rule and in the Schedule of 
Classifications (15A NCAC 2B .0302 through 
.0317) as specified for the appropriate river basin 
and will also be described on maps maintained by 
the Division of Environmental Management. 

(d) Petition Process. Any person may petition 
the Commission to classify a surface water of the 
state as an ORW. The petition shall identify the 
exceptional resource value to be protected, address 
how the water body meets the general criteria in 
Paragraph (a) of this Rule, and the suggested 
actions to protect the resource values. The Com- 
mission may request additional supporting informa- 
tion from the petitioner. The Commission or its 
designee will initiate public proceedings to classify 
waters as ORW or will inform the petitioner that 
the waters do not meet the criteria for ORW with 
an explanation of the basis for this decision. The 
petition shall be sent to: 

Director 
DEHNR/Division of Environmental Management 
P.O. Box 29535 
Raleigh, North Carolina 27626-0535 
The envelope containing the petition shall clearly 
bear the notation: RULE-MAKING PETITION 
FOR ORW CLASSIFICATION. 

(e) Listing of Waters Classified ORW with 
Specific Actions. Waters classified as ORW with 
specific actions to protect exceptional resource 
values are listed as follows: 

(1) Roosevelt Natural Area [White Oak 
River Basin, Index Nos. 20-36-9.5-U) 
and 20-36-9. 5-(2)] including all fresh 
and saline waters within the property 
boundaries of the natural area will have 
only new development which complies 
with the low density option in the 
stormwater rules as specified in 15A 
NCAC 2H .1003(a)(2) within 575 feet 
of the Roosevelt Natural Area (if the 
development site naturally drains to the 
Roosevelt Natural Area). 

(2) Chattooga River ORW Area (Little 
Tennessee River Basin and Savannah 
River Drainage Area): the following 
undesignated waterbodies that are 
tributary to ORW designated segments 

shall comply with R-«k .0216 

Paragraph (c) of this Section Rule in 
order to protect the designated waters 
as per Rule .0203 of this Section. 
However, expansions of existing 
discharges to these segments will be 
allowed if there is no increase in 
pollutant loading: 



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$ 



I 



I 



(A) North and South Fowler Creeks, 

(B) Green and Norton Mill Creeks, 

(C) Cane Creek, 

(D) Ammons Branch, 

(E) Glade Creek, and 

(F) Associated tributaries. 

(3) Henry Fork ORW Area (Catawba River 
Basin): the following undesignated 
waterbodies that are tributary to ORW 
designated segments shall comply with 
Rul e — ,0216 Paragraph (c) of this 
Section Rule in order to protect the 
designated waters as per Rule .0203 of 
this Section: 

(A) Ivy Creek, 

(B) Rock Creek, and 

(C) Associated tributaries. 

(4) South Fork New and New Rivers ORW 
Area [New River Basin (Index Nos. 10- 
1-33.5 and 10)]: the following 
management strategies, in addition to 
the discharge requirements specified in 
Rule .0216(c)(1), will be applied to 
protect the designated ORW areas: 

(A) Stormwater controls described in Rule 
.02 1 6(c)( 1 ) will apply within one mile 
and draining to the designated ORW 
areas ; 

(B) New or expanded NPDES permitted 
wastewater discharges located 
upstream of the designated ORW will 
be permitted such that the following 
water quality standards are maintained 
in the ORW segment: 

(i) the total volume of treated 
wastewater for all upstream 
discharges combined will not 
exceed 50 percent of the total 
instream flow in the designated 
ORW under 7Q10 conditions; 

(ii) a safety factor will be applied to 
any chemical allocation such that 
the effluent limitation for a 
specific chemical constituent will 
be the more stringent of either the 
limitation allocated under design 
conditions (pursuant to 15A 
NCAC 2B .0206) for the normal 
standard at the point of discharge, 
or the limitation allocated under 
design conditions for one-half the 
normal standard at the upstream 
border of the ORW segment; 

(iii) a safety factor will be applied to 
any discharge of complex 



wastewater (those containing or 

potentially containing toxicants) to 

protect for chronic toxicity in the 

ORW segment by setting the 

whole effluent toxicity limitation 

at the higher (more stringent) 

percentage effluent determined 

under design conditions (pursuant 

to 15A NCAC 2B .0206) for 

either the instream effluent 

concentration at the point of 

discharge or twice the effluent 

concentration calculated as if the 

discharge were at the upstream 

border of the ORW segment; 

(C) New or expanded NPDES permitted 

wastewater discharges located 

upstream of the disignated ORW will 

comply with the following: 

(i) Oxygen Consuming Wastes: 
Effluent limitations will be as 
follows: BOD = 5 mg/1, and 
NH3-N = 2 mg/1; 

(ii) Total Suspended Solids: 
Discharges of total suspended 
solids (TSS) will be limited to 
effluent concentrations of 10 mg/1 
for trout waters and to 20 mg/1 
for all other waters; 

(iii) Emergency Requirements: 
Failsafe treatment designs will be 
employed, including stand-by 
power capability for entire 
treatment works, dual train design 
for all treatment components, or 
equivalent failsafe treatment 
designs; 

(iv) Nutrients: Where nutrient 

overenrichment is projected to be 
a concern, appropriate effluent 
limitations will be set for 
phosphorus or nitrogen, or both. 

(5) Old Field Creek (New River Basin): 
the undesignated portion of Old Field 
Creek (from its source to Call Creek) 
shall comply with Rule .0216(c) of this 
Section in order to protect the 
designated waters as per Rule .0203 of 
this Section. 

(6) In the following designated 
waterbodies, no additional restrictions 
will be placed on new or expanded 
marinas. The only new or expanded 
NPDES permitted discharges that will 
be allowed will be non-domestic. 



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PROPOSED RULES 



non-process industrial discharges. 

(A) The Alligator River Area (Pasquotank 

River Basin) extending from the 

source of the Alligator River to the 

U.S. Highway 64 bridge including 

New Lake Fork, North West Fork 

Alligator River, Juniper Creek, 

Southwest Fork Alligator River, 

Scouts Bay, Gum Neck Creek, 

Georgia Bay, Winn Bay, Stumpy 

Creek Bay, Stumpy Creek, Swann 

Creek (Swann Creek Lake). Whipping 

Creek (Whipping Creek Lake), 

Grapevine Bay, Rattlesnake Bay, The 

Straits, The Frying Pan, Coopers 

Creek, Babbitt Bay, Goose Creek, 

Milltail Creek, Boat Bay, Sandy 

Ridge Gut (Sawyer Lake) and Second 

Creek, but excluding the Intracoastal 

Waterway (Pungo River-Alligator 

River Canal) and all other tributary 

streams and canals. 

(7) In the following designated 

waterbodies, the only type of new or 

expanded marina that will be allowed 

will be those marinas located in upland 

basin areas, or those with less than 30 

slips, having no boats over 21 feet in 

length and no boats with heads. The 

only new or expanded NPDES 

permitted discharges that will be 

allowed will be non-domestic, 

non-process industrial discharges. 

(A) The Northeast Swanquarter Bay Area 
including all waters northeast of a line 
from a point at Lat. 35° 23' 51" and 
Long. 76° 21' 02" thence southeast 
along the Swanquarter National 
Wildlife Refuge hunting closure 
boundary (as defined by the 1935 
Presidential Proclamation) to Drum 
Point. 

(B) The Neuse-Southeast Pamlico Sound 
Area (Southeast Pamlico Sound Area 
(Southeast Pamlico Sound Section of 
the Southeast Pamlico, Core and 
Back Sound Area); (Neuse River 
Basin) including all waters within an 
area defined by a line extending from 
the southern shore of Ocracoke Inlet 
northwest to the Tar-Pamlico River 
and Neuse River basin boundary, then 
southwest to Ship Point. 

(C) The Core Sound Section of the 
Southeast Pamlico, Core and Back 



Sound Area (White Oak River Basin), 
including all waters of Core Sound 
and its tributaries, but excluding 
Nelson Bay, Little Port Branch and 
Atlantic Harbor at its mouth, and 
those tributaries of Jarrett Bay that are 
closed to shellfishing. 

(D) The Western Bogue Sound Section of 
the Western Bogue Sound and Bear 
Island Area (White Oak River Basin) 
including all waters within an area 
defined by a line from Bogue Inlet to 
the mainland at SR 1117 to a line 
across Bogue Sound from the 
southwest side of Gales Creek to 
Rock Point, including Taylor Bay and 
the Intracoastal Waterway. 

(E) The Stump Sound Area (Cape Fear 
River Basin) including all waters of 
Stump Sound and Alligator Bay from 
marker Number 17 to the western end 
of Permuda Island, but excluding 
Rogers Bay, the Kings Creek 
Restricted Area and Mill Creek. 

(F) The Topsail Sound and Middle Sound 
Area (Cape Fear River Basin) 
including all estuarine waters from 
New Topsail Inlet to Mason Inlet, 
including the Intracoastal Waterway 
and Howe Creek, but excluding Pages 
Creek and Futch Creek. 

(8) In the following designated 

waterbodies, no new or expanded 

NPDES permitted discharges and only 

new or expanded marinas with less than 

30 slips, having no boats over 21 feet 

in length and no boats with heads will 

be allowed. 

(A) The Swanquarter Bay and Juniper Bay 

Area (Tar-Pamlico River Basin) 

including all waters within a line 

beginning at Juniper Bay Point and 

running south and then west below 

Great Island, then northwest to Shell 

Point and including Shell Bay, 

Swanquarter and Juniper Bays and 

their tributaries, but excluding all 

waters northeast of a line from a point 

at Lat. 35° 23' 51" and Long. 76 c 

21* 02" thence southeast along the 

Swanquarter National Wildlife Refuge 

hunting closure boundary (as defined 

by the 1935 Presidential 

Proclamation) to Drum Point and also 

excluding the Blowout Canal. 



560 



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t 



I 



t 



Hydeland Canal, Juniper Canal and 
Quarter Canal. 

(B) The Back Sound Section of the 
Southeast Pamlico, Core and Back 
Sound Area (White Oak River Basin) 
including that area of Back Sound 
extending from Core Sound west 
along Shackleford Banks, then north 
to the western most point of Middle 
Marshes and along the northwest 
shore of Middle Marshes (to include 
all of Middle Marshes), then west to 
Rush Point on Harker's Island, and 
along the southern shore of Harker's 
Island back to Core Sound. 

(C) The Bear Island Section of the 
Western Bogue Sound and Bear Island 
Area (White Oak River Basin) 
including all waters within an area 
defined by a line from the western 
most point on Bear Island to the 
northeast mouth of Goose Creek on 
the mainland, east to the southwest 
mouth of Queen Creek, then south to 
green marker No. 49, then northeast 
to the northern most point on Huggins 
Island, then southeast along the 
shoreline of Huggins Island to the 
southeastern most point of Huggins 
Island, then south to the northeastern 
most point on Dudley Island, then 
southwest along the shoreline of 
Dudley Island to the eastern tip of 
Bear Island. 

(D) The Masonboro Sound Area (Cape 
Fear River Basin) including all waters 
between the Barrier Islands and the 
mainland from Carolina Beach Inlet to 
Masonboro Inlet. 

(9) Black and South Rivers ORW Area 
(Cape Fear River Basin) [Index Nos. 
18-68-(0.5), 18-68-Q.5), 18-68-0 1.5), 
18-68-12-(0.5), 18-68-12-Q 1.5), and 
18-68-21: the following management 
strategies, in addition to the discharge 
requirements specified m Subparagraph 
(c)( 1 ) of this Rule, will be applied to 
protect the designated ORW areas : 

(A) Stormwater controls described in 
Subparagraph (c)(1) of this Rule will 
a pply within one mile and draining to 
the designated ORW areas; 

(B) New or expanded NPDES permitted 
wastewater discharges located one 
mile upstream of the stream segments 



ill) 



(iii) 



designated ORW (upstream on the 
designated mainstem and upstream 
into direct tributaries to the designated 
mainstem) will comply with the 
following discharge restrictions: 
(jj Oxygen Consuming Wastes: 
Effluent limitations will be as 
follows: BOD = 5 mg/1 and 
NH3-N = 2 mg/1; 
Total Suspended Solids : 
Discharges of total suspended 
solids (TSS) will be limited to 
effluent concentrations of 20 
mg/1; 

Emergency Requirements : 
Failsafe treatment designs will be 
employed, including stand-by 
power capability for entire 
treatment works, dual train design 
for all treatment components, or 
equivalent failsafe treatment 
designs; 

Nutrients: Where nutrient 

overenrichment js projected to be 
a concern, appropriate effluent 
limitations will be set for 
phosphorus or nitrogen, or both. 
Toxic substances: In cases where 
complex discharges (those 
containing or potentially 
containing toxicants) may be 
currently present in the discharge, 
a safety factor will be applied to 
any chemical or whole effluent 



(iv) 



(v) 



toxicity allocation. The limit for 
a specific chemcial constituent 
will be allocated at one-half of the 
normal standard at design 
conditions. Whole effluent 

toxicity will be allocated to 
protect for chronic toxicity at an 
effluent concentration equal to 
twice that which is acceptable 
under flow design criteria 



(pursuant to 
.0206). 



15A NCAC 2B 



Statutory Authority G.S. 143-214. 1. 

SECTION .0300 - ASSIGNMENT OF 
STREAM CLASSIFICATIONS 

.0311 CAPE FEAR RIVER BASIN 

(a) Places where the schedules may be inspected: 
(1) Clerk of Court: 



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561 



PROPOSED RULES 



Alamance County 

Bladen County 

Brunswick County 

Caswell County 

Chatham County 

Columbus County 

Cumberland County 

Duplin County 

Durham County 

Forsyth County 

Guilford County 

Harnett County 

Hoke County 

Lee County 

Montgomery County 

Moore County 

New Hanover County 

Onslow County 

Orange County 

Pender County 

Randolph County 

Rockingham County 

Sampson County 

Wake County 

Wayne County 
(2) North Carolina Department of 
Environment, Health, and Natural 
Resources: 

(A) Winston-Salem Regional Office 

8025 North Point Boulevard 

Suite 100 

Winston-Salem, North Carolina 

(B) Fayetteville Regional Office 

Wachovia Building 

Suite 714 

Fayetteville, North Carolina 

(C) Raleigh Regional Office 

3800 Barrett Drive 
Raleigh, North Carolina 

(D) Washington Regional Office 

1424 Carolina Avenue 
Washington. North Carolina 

(E) Wilmington Regional Office 

127 Cardinal Drive Extension 
Wilmington, North Carolina 
(fa) The Cape Fear River Basin Schedule of 
Classification and Water Quality Standards was 
amended effective: 

(1) March 1. 1977; 

(2) December 13, 1979; 

(3) December 14, 1980; 

(4) August 9, 1981; 

(5) April 1, 1982; 

(6) December 1, 1983; 

(7) January 1, 1985; 



(8) August 1. 1985; 

(9) December 1, 1985; 

(10) February 1, 1986; 

(11) July 1, 1987; 

(12) October 1, 1987; 

(13) March 1, 1988; 

(14) June 1, 1988; 

(15) July 1, 1988; 

(16) January 1, 1990; 

(17) August 1, 1990; 

(18) August 3, 1992; 

(19) February 1, 1994. 

(c) The Schedule of Classifications and Water 
Quality Standards for the Cape Fear River Basin 
has been amended effective June 1, 1988 as 
follows: 

(1) Cane Creek [Index No. 16-2 1-(1)] from 
source to a point 0.5 mile north of 
N.C. Hwy. 54 (Cane Reservoir Dam) 
including the Cane Cre«k Reservoir and 
all tributaries has been reclassified from 
Class WS-III to WS-I. 

(2) Morgan Creek [Index No. 16-41-1-(1)] 
to the University Lake dam including 
University Lake and all tributaries has 
been reclassified from Class WS-III to 
WS-I. 

(d) The Schedule of Classifications and Water 
Quality Standards for the Cape Fear River Basin 
has been amended effective July 1, 1988 by the 
reclassification of Crane Creek (Crains Creek) 
[Index No. 1 8-23- 1 6-( 1 )] from source to mouth of 
Beaver Creek including all tributaries from C to 
WS-III. 

(e) The Schedule of Classifications and Water 
Quality Standards for the Cape Fear River Basin 
has been amended effective January 1, 1990 as 
follows: 

(1) Intracoastal Waterway (Index No. 
18-87) from southern edge of White 
Oak River Basin to western end of 
Permuda Island (a line from Morris 
Landing to Atlantic Ocean), from the 
eastern mouth of Old Topsail Creek to 
the southwestern shore of Howe Creek 
and from the southwest mouth of Shinn 
Creek to channel marker No. 153 
including all tributaries except the King 
Creek Restricted Area, Hardison Creek, 
Old Topsail Creek, Mill Creek, Futch 
Creek and Pages Creek were 
reclassified from Class SA to Class SA 
ORW. 

(2) Topsail Sound and Middle Sound ORW 
Area which includes all waters between 



562 



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PROPOSED RULES 



# 



(3) 



the Barrier Islands and the Intracoastal 
Waterway located between a line 
running from the western most shore of 
Mason Inlet to the southwestern shore 
of Howe Creek and a line running from 
the western shore of New Topsail Inlet 
to the eastern mouth of Old Topsail 
Creek was reclassified from Class SA 
to Class SA ORW. 

Masonboro Sound ORW Area which 
includes all waters between the Barrier 
Islands and the mainland from a line 
running from the southwest mouth of 
Shinn Creek at the Intracoastal 
Waterway to the southern shore of 
Masonboro Inlet and a line running 
from the Intracoastal Waterway 
Channel marker No. 153 to the 
southside of the Carolina Beach Inlet 
was reclassified from Class SA to Class 
SA ORW. 

(f) The Schedule of Classifications and Water 
Quality Standards for the Cape Fear River Basin 
has been amended effective January 1, 1990 as 
follows: Big Alamance Creek [Index No. 
16-19-0)] from source to Lake Mackintosh Dam 
including all tributaries has been reclassified from 
Class WS-III NSW to Class WS-II NSW. 

(g) The Schedule of Classifications and Water 
Quality Standards for the Cape Fear River Basin 
was amended effective August 3, 1992 with the 
reclassification of all water supply waters (waters 
with a primary classification of WS-I, WS-II or 
WS-III). These waters were reclassified to WS-I, 
WS-II, WS-III, WS-IV or WS-V as defined in the 
revised water supply protection rules, (15A NCAC 
2B .0100, .0200 and .0300) which became effec- 
tive on August 3, 1992. In some cases, streams 
with primary classifications other than WS were 
reclassified to a WS classification due to their 
proximity and linkage to water supply waters. In 
other cases, waters were reclassified from a WS 
classification to an alternate appropriate primary 
classification after being identified as downstream 
of a water supply intake or identified as not being 
used for water supply purposes. 

(h) The Schedule of Classifications and Water 
Quality Standards for the Cape Fear River Basin 
was amended effective December _L 1993 as 
follows: 

(1) The Black River from its source to the 
Cape Fear River flndex Nos. 18-68- 
(0.5), 18-68-(3.5) and 18-68-(l 1.5)1 
was reclassified from Classes C Sw and 
C Sw HQW to Class C Sw ORW. 



(2) The South River from Big Swamp to 
the Black River Undex Nos. 18-68-12- 
(0.5) and 18-68-12-H 1.5)1 was reclassi- 
fied from Classes C Sw and C Sw 
HQW to Class C Sw ORW. 

(3) Six Runs Creek from Quewhiffle 
Swamp to the Black River (Index No. 
18-68-21 was reclassified from Class C 
Sw to Class C Sw ORW. 

Statutory Authority G.S. 143-214.1; 143-215.1; 
143-21 5. 3(a)(1). 

I\ otice is hereby given in accordance with G.S. 
150B-21.2 that the DEM - Air Quality Section 
intends to amend rules cited as 15 A NCAC 2D 
.1201 -.1202, .1204, .1206, .1209 and 15A 
NCAC 2H .0601. 

1 he proposed effective date of this action is 
November 1. 1993. 

1 he public hearings will be conducted at: 

July 20, 1993 
7:00 p.m. 

Groundfloor Hearing Room 

Archdale Building 

512 North Salisbury Street 

Raleigh, North Carolina 

July 27, 1993 
7:00 p.m. 

Charlotte/Mecklenburg Government Center 

Conference Chamber 

600 East 4th Street 

Charlotte, North Carolina 

MXeason for Proposed Action: To exempt small 
incinerators used by farmers to dispose of dead 
animals originating on their farms from the incin- 
erator rules and from needing a permit. To define 
crematory incinerator as a new category with a 
minimum temperature of 1600° F. 

Comment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Any person desiring to comment for more 
than three minutes is requested to submit a written 
statement for inclusion in the record of proceed- 



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563 



PROPOSED RULES 



ings at the public hearing. The hearing record 
will remain open until August 27, 1993 to receive 
additional written statements. Comments should 
be sent to and additional information concerning 
the hearing or the proposals may be obtained by 
contacting: Mr. Thomas C. Allen, Division of 
Environmental Management, P. O. Box 29535. 
Raleigh, North Carolina 27626-0535, (919) 733- 
1489. 

CHAPTER 2 - ENVIRONMENTAL 
MANAGEMENT 

SUBCHAPTER 2D - AIR POLLUTION 
CONTROL REQUIREMENTS 

SECTION .1200 - CONTROL OF 
EMISSIONS FROM INCINERATORS 

.1201 PURPOSE AND SCOPE 

(a) This Section sets forth rules for the control 
of the emissions of air pollutants from incinerators. 

(b) The rules in this Section apply to all types of 
incinerators as defined by 15A NCAC 2D 
.0101(19), including incinerators with heat 
recovery and industrial incinerators. The rules in 
this Section do not apply to afterburners, flares, 
fume incinerators, and other similar devices used 
to reduce the emissions of air pollutants from 
processes, whose emissions shall be regulated as 
process emissions. 

(c) This Section does not apply to any boilers or 
industrial furnaces that burn waste as a fuel. 

(d) This Section does not apply to incinerators 
used to dispose of dead animals or poultry that 
meet the following requirements: 

(1) The incinerator is owned and operated 
by a farmer; 

(2) The incinerator is used solely to dispose 
of animals or poultry originating on the 
farm where the incinerator is located; 

(3) The incinerator has a design capacity of 
no more than 150 pounds per hour, and 
the incinerator is not charged at a rate 
that exceeds its design capacity; and 

(4) The incinerator complies with Rule 
.0521 (visible emissions) and .0522 
(odorous emissions) of this Subchapter. 

(e) If the emissions of aU toxic air pollutants 
from an incinerator and associated waste handling 
and storage are less than the levels listed in 15A 
NCAC 2H .0610(h), the incinerator shall be 
exempt from Rules . 1205(f) through (i), and . 1206 
of this Section. 

(f) (d) If an incinerator can be defined as being 



more than one type of incinerator, then the 
following order shall be used to determine the 
standards and requirements to apply: hazardous 
waste incinerators, sludge incinerators, medical 
waste incinerators, municipal solid waste 
incinerators, crematory incinerators, and other 
incinerators. 

Statutory Authority G.S. 143-215. 3(a)(1). 

.1202 DEFINITIONS 

(a) For the purposes of this Section, the follow- 
ing definitions apply: 

(1) "Crematory incinerator" means any 
incinerator located at a crematory regu- 
lated under 21 NCAC 34C that is used 
solely for the cremation of human 
remains. 

(2) (4-) "Construction and demolition 
waste" means wood, paper, and other 
combustible waste resulting from con- 
struction and demolition projects except 
for hazardous waste and asphaltic mate- 
rial. 

(3) (3) "Hazardous waste incinerator" 
means an incinerator regulated under 
15A NCAC 13A .0001 through .0014, 
40 CFR 264.340 to 264.351, Subpart 
O, or 265.340 to 265.352, Subpart O. 

(4) 0) "Medical waste incinerator" means 
any incinerator regulated under Section 
15A NCAC 13B .1207(3). 

(5) {A) "Municipal solid waste incinerator" 
means an incinerator as defined at 40 
CFR 60.51a that burns municipal-type 
solid waste of which at least 95 percent 
by weight is generated off-site and that 
has a capacity of at least one ton per 
hour, except that boilers shall not be 
considered part of this definition. 

(6) {5-) "Municipal-type solid waste" means 
solid waste defined at 40 CFR 60.51a. 

(7) f6) "Sludge incinerator" means any 
incinerator regulated under Paragraph 
(a)(4) of Rule .0525 of this Subchapter. 

(b) The version of the Code of Federal Regula- 
tions adopted by reference incorporated in this 
Rule is that of February 15, 1991, and does not 
include any subsequent amendments or editions to 
the referenced material in accordance with G.S. 
150B 1 4 (b) . 

Statutory Authority G.S. 143-213; 143-215. 3(a)(1). 

. 1204 REPORTING AND RECORDKEEPFNG 



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PROPOSED RULES 



(a) The reporting and recordkeeping require- 
ments of Rule . 1 105 of this Subchapter shall apply 
to all incinerators in addition to any reporting and 
recordkeeping requirements that may be contained 
in any other rules. 

(b) The owner or operator of an incinerator shall 
maintain and operate a continuous temperature 
measuring and recording device for the primary 
chamber and, where there is a secondary chamber, 
for the secondary chamber. The owner or opera- 
tor of an incinerator that has installed air pollution 
abatement equipment to reduce emissions of 
hydrogen chloride shall install, operate, and 
maintain continuous monitoring equipment to 
measure pH for wet scrubber systems and rate of 
alkaline injection for dry scrubber systems. The 
Director shall require the owner or operator of an 
incinerator with a permitted charge rate of 750 
pounds per hour or more to install, operate, and 
maintain continuous monitors for oxygen or for 
carbon monoxide or both as he deems appropriate. 
The Director may require the owner or operator of 
an incinerator with a permitted charge rate of less 
than 750 pounds per hour to install, operate, and 
maintain monitors for oxygen or for carbon mon- 
oxide or both as he deems appropriate. 

(c) All monitoring devices and systems required 
by this Rule shall be subject to a quality assurance 
program approved by the Director. Such quality 
assurance program shall include procedures and 
frequencies for calibration, standards traceability, 
operational checks, maintenance, auditing, data 
validation, and a schedule for implementing the 
quality assurance program. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. 107(a)(4), (5). 

.1206 OPERATIONAL STANDARDS 

(a) The operational standards in this Rule do not 
apply to incinerators where operational standards 
in Rule .0524 or .0525 of this Subchapter apply. 

(b) Hazardous waste incinerators. Hazardous 
waste incinerators shall comply with Rule s 15A 
NCAC 13A .0001 through .0014, which are 
administered and enforced by the Division of Solid 
Waste Management. 

(c) Medical waste incinerators. Medical waste 
incinerators shall meet the following requirements: 

( 1 ) The primary chamber temperature shall 
be at least 1200" F. 

(2) The secondary chamber temperature 
shall be at least 1800° F. 

(3) Gases generated by the combustion 
shall be subjected to a minimum tem- 



perature of 1 800° F for a period of not 

less than one second. 
Medical waste incinerators shall comply with 15A 
NCAC 13B . 1207(3) and any other pertinent parts 
of Section 15A NCAC 13B .1200, which are 
administered and enforced by the Division of Solid 
Waste Management. 

(d) Municipal solid waste incinerators. Munici- 
pal solid waste incinerators shall meet the follow- 
ing requirements: 

( 1 ) The concentration of carbon monoxide 
at the combustor outlet shall not exceed 
the concentration in Table 1 of Para- 
graph (a) of 40 CFR 60.36a. The 
incinerator technology named in this 
table is defined under 40 CFR 60.51a. 

(2) The temperature of the exhaust gas 
entering the particulate matter control 
device shall not exceed 450° F. 

(3) Gases generated by the combustion 
shall be subjected to a minimum tem- 
perature of 1800° F for a period of not 
less than one second. 

(e) Sludge incinerators. The combustion tem- 
perature in a sludge incinerator shall not be greater 
than 1650° F or less than 1200° F. The maximum 
oxygen content of the exit gas from a sludge 
incinerator stack shall be: 

(1) 12 percent (dry basis) for a multiple 
hearth sewage sludge incinerator, 

(2) seven percent (dry basis) for a fluidized 
bed sewage sludge incinerator, 

(3) nine percent (dry basis) for an electric 
sewage sludge incinerator, and 

(4) 12 percent (dry basis) for a rotary kiln 
sewage sludge incinerator. 

(f) Crematory incinerators. Gases generated by 
the combustion shall be subjected to a minimum 
temperature of 1600" F for a period of not less 
than one second. 

(g) (f) Other incinerators. All incinerators not 
covered under Paragraphs (a) through fe) (f) of 
this Rule shall meet the following requirement: 
Gases generated by the combustion shall be sub- 
jected to a minimum temperature of 1800° F for a 
period of not less than one second. The tempera- 
ture of 1800" F shall be maintained at least 55 
minutes out of each 60-minute period, but at no 
time shall the temperature go below 1600° F. 

(h) fg-) Except during start-up where the proce- 
dure has been approved in accordance with Rule 
.0535(g) of this Subchapter, waste material shall 
not be loaded into any incinerators covered under 
Paragraphs (c), (d), ef (f),, or l_gj when the temper- 
ature is below the minimum required temperature. 



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565 



PROPOSED RULES 



Start-up procedures may be determined on a case- 
by-case basis in accordance with Rule .0535(g) of 
this Subchapter. Incinerators covered under 
Paragraphs (c), (d), and (f)., and (g) shall have 
automatic auxiliary burners that are capable of 
maintaining the required minimum temperature in 
the secondary chamber excluding the heat content 
of the wastes. 

(U fb) The version of the Code of Federal 
Regulations adopted by reference incorporated in 
this Rule is that of February 15, 1991. and does 
not include any subsequent amendments or addi- 
tions to the referenced material in accordance with 
G.S. 150B 1 4 (b) . 

Statutory Authority G.S. 143-215. 3(a)(l ); 143- 
215. 107(a)(5). 

.1209 COMPLIANCE SCHEDULES 

(a) The owner or operator of an incinerator 
subject to Paragraphs (f), (g), (h) or (i) of Rule 
. 1 205 of this Section or subject to Paragraphs (d) 
through ffi (ff) of Rule . 1 206 of this Section except 
medical waste incinerators and hazardous waste 
incinerators that: 

( 1 ) begins construction after September 30, 
1991, shall be in compliance with Rule 
.1205 of this Section and Paragraphs 
(d) through (g) £h] of Rule . 1 206 of this 
Section before beginning operation. 

(2) begins construction or is in operation 
before October 1. 1991, shall adhere to 
the following increments of progress 
and schedules: 

(A) Documentation that the incinerator 

meets the requirements of Paragraphs 

(f). (g), (h), and (i) of Rule .1205 of 

this Section and Paragraphs (d) 

through *g) £hj of Rule .1206 of this 

Section or an air permit application 

including final plans and a compliance 

schedule shall be submitted before: 

(i) April 1, 1992, for incinerators at 

plant sites with an incinerator 

capacity of 1000 pounds per hour 

or more; 

(ii) October 1. 1992, for incinerators 

at plant sites with an incinerator 

capacity of less than 1000 pounds 

per hour but 400 pounds per hour 

or more; 

(iii) April 1, 1993, for incinerators at 

plant sites with an incinerator 

capacity of less than 400 pounds 

per hour but 200 pounds per hour 



or more; 
(iv) October 1, 1993, for plant sites 
with an incinerator capacity of 
less than 200 pounds per hour. 

(B) The compliance schedule shall contain 
the following increments of progress: 

(i) a date by which contracts for the 
emission control system and/or or 
process equipment shall be award- 
ed or orders shall be issued for 
purchase of component parts; 

(ii) a date by which on-site construc- 
tion or installation of the emission 
control and/or or process equip- 
ment shall begin; 

(iii) a date by which on-site construc- 
tion or installation of the emission 
control and/or or process equip- 
ment shall be completed; and 

(iv) a date by which final compliance 
shall be achieved. 

(C) The final compliance date under 
Paragraph (a)(2)(B) of this Rule shall 
not be later than: 

(i) April 1. 1994, for incinerators at 
plant sites with an incinerator 
capacity of 1000 pounds per hour 
or more; 

(ii) October 1, 1994, for incinerators 
at plant sites with an incinerator 
capacity of less than 1000 pounds 
per hour but 400 pounds per hour 
or more; 

(iii) April 1, 1995, for incinerators at 
plant sites with an incinerator 
capacity of less than 400 pounds 
per hour but 200 pounds per hour 
or more; 

(iv) October 1, 1995, for incinerators 

at plant sites with an incinerator 

capacity of less than 200 pounds 

per hour. 

(b) The owner or operator of a medical waste 

incinerator that: 

(1) begins construction after September 30, 
1991, shall be in compliance with Rule 
.1205 of this Section and Paragraphs 
(b) (c) and (g) ihj of Rule . 1 206 of this 
Section before beginning operation; 

(2) begins construction or is in operation 
before October 1, 1991, shall adhere to 
the following increments of progress 
and schedules: 

(A) Documentation that the incinerator 
meets the requirements of Paragraphs 



566 



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PROPOSED RULES 



# 



♦ 



(f), (g), (h), and (i) of Rule .1205 of 
this Section and Paragraph (c) of Rule 
. 1206 of this Section or an air permit 
application including final plans and a 
compliance schedule shall be submit- 
ted following the schedule set ew out 
in Paragraph (a)(2)(A) of this Rule; 

(B) The compliance schedule shall contain 
the same increments of progress as 
required by Paragraph (a)(2)(B) of 
this Rule; 

(C) Final compliance shall be achieved no 
later than January 1, 1995. 

(c) The owner or operator of a hazardous waste 
incinerator that: 

( 1 ) begins construction after September 30, 
1991, shall be in compliance with Rule 
.1205 of this Section before beginning 
operation; 

(2) begins construction or is in operation 
before October 1, 1991. shall adhere to 
the following increments of progress 
and schedules: 

(A) Documentation that the incinerator 
meets the requirements of Rule .1205 
of this Section or documentation that 
a permit application has been filed 
with the Division of Solid Waste 
Management to make necessary modi- 
fications to bring the incinerator into 
compliance with Rule .1205 of this 
Section and a compliance schedule 
shall be submitted before April 1 , 
1992; 

(B) The compliance schedule shall contain 
the date by which a permit application 
shall be submitted to the Division of 
Environmental Management and the 
increments of progress required by 
Paragraph (a)(2)(B) of this Rule; 

(C) Final compliance shall be achieved 
within two years after receipt of a 
permit from the Division of Solid 
Waste Management, but before Octo- 
ber 1, 1995. 

(d) The owner or operator shall certify to the 
Director within five days after the deadline, for 
each increment of progress, whether the required 
increment of progress has been met. 

Statutory Authority- G.S. 143-215. 3(a)(1); 143- 

215. 107(a)(4), (5). 

SUBCHAPTER 2H - PROCEDURES FOR 
PERMITS: APPROVALS 



SECTION .0600 - AIR QUALITY PERMITS 

.0601 PURPOSE AND SCOPE 

(a) The following sources or activities are not 
likely to contravene any applicable ambient air 
quality or emission control standard, and therefore, 
are not required to obtain a permit: 

(1) air conditioning or comfort ventilation 
systems which do not transport, re- 
move, or exhaust product or byproduct 
to the atmosphere; 

(2) combustion sources serving heating 
systems which provide comfort heat for 
residences; 

(3) laboratory equipment used for chemical 
or physical analysis; 

(4) nonstationary internal combustion en- 
gines and vehicles; 

(5) equipment which emits only nitrogen, 
oxygen, carbon dioxide, and/or or 
water vapor; 

(6) maintenance or repair of existing equip- 
ment that does not result in an increase 
to the emission of air pollutants; 

(7) replacement of existing equipment with 
like equipment of same size, type, and 
function that does not result in an in- 
crease to the emission of air pollutants 
and that is described by the current 
permit, including the application, ex- 
cept for characteristics that could not 
affect pollution control, for example, 
serial numbers; 

(8) smudge pots for orchards or small 
outdoor heating devices to prevent 
freezing of plants; 

(9) fuel burning equipment firing exclusive- 
ly gaseous fuel with the total heat input 
rating of 250 million BTU per hour or 
less; 

(10) fuel burning equipment firing exclusive- 
ly No. 1 or No. 2 fuel oil with the total 
heat input rating of 100 million BTU 
per hour or less; 

(11) fuel burning equipment firing a mixture 
of gaseous fuel. No. 1 fuel oil or No. 
2 fuel oil. in any proportion, with the 
total heat input rating of 100 million 
BTU per hour or lessr^ 

(12) any incinerator covered under Para- 
graph (d) of 15A NCAC 2D .1201. 

(b) The owner or operator of any source re- 
quired to have a permit may request the Director 
to exempt the source from having to have a per- 
mit. The request shall be in writing. Along with 



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567 



PROPOSED RULES 



the request, the owner or operator shall submit 
supporting documentation to show that air quality 
and emission control standards will not be, nor are 
likely to be, contravened. If the documentation 
shows to the satisfaction of the Director that air 
quality and emission control standards will not be, 
nor are likely to be. contravened, a permit shall 
not be required. 

(c) The owner or operator of all sources for 
which there is an ambient air quality or emission 
control standard that is not exempted by Paragraph 

(a) or (b) of this Rule shall apply for a permit. 
The owner or operator of a source required to 
have a permit shall not begin constructing or 
operating the source if it is a new source or modi- 
fy the source if it is an existing source without 
first obtaining a permit. 

(d) Any person who constructs or modifies a 
complex source subject to Section 15A NCAC 2D 
.0800 shall obtain a permit in accordance with 
Rules .0602 through .0609 of this Section. If the 
source is excepted in Section 15A NCAC 2D 
.0800, a permit shall not be required. 

(e) Any exemption allowed by Paragraph (a) or 

(b) of this Rule does not apply to sources subject 
to 15A NCAC 2D .0524, .0525, or .0530. The 
owner or operator of these sources shall obtain a 
permit before beginning construction or operation. 



July 21, 1993 

Beaufort County Courthouse 

District Court Room 

Washington, NC 

July 22, 1993 

NC Aquarium 
Airport Road 
Manteo, NC 

July 26, 1993 

Randolph County Courthouse 

Courtroom "C" 

145 Worth Street 

Asheboro, NC 

July 27, 1993 

New Hanover County Courthouse 
Court Room 302 
4th and Princess Street 
Wilmington, NC 

BUSINESS SESSION: 

The Marine Fisheries Commission will conduct a 
Business Session on August 6th and 7th, 1993, 
starting at 9:00 A.M. to decide on these proposed 
rules. This meeting will be conducted in Beaufort. 
N. C. at Duke University- Marine Lab. 



Statutory Authority G.S. 143-215. 3(a)(1): 143- 
215. 108: 143-215. 109. 



I\otice is hereby given in accordance with G.S. 
150B-21.2 that the NC Marine Fisheries Commis- 
sion intends to amend rules cited as 15A NCAC 31 
.0001: 15A NCAC 3J .0401 and ISA NCAC 3R 
.0011. 

1 he proposed effective date of this action is 
October 1. 1993. 



Jxeason for Proposed Action: 
ISA NCAC 31 .0001 - DEFINITIONS - To define 
intertidal oyster beds at the request of the Pender 
County Waterman 's Association. 
ISA NCAC 3 J .0401- COMMERCIAL FISHING 
GEAR - To allow proclamation authority over all 
fishing gear which would include gear used for 
recreational purposes as requested by commercial 
fishermen. 

15A NCAC 3R . 0011 - PURSE SEINES PROHIB- 
ITED - To prohibit the taking of menhaden by 
purse seines in the Atlantic Ocean off Dare County 
as requested by the Town of Nags Head. 



1 he public hearings will be conducted on the 
following dates and locations. Each hearing will 
begin at 7:00 P.M. with a public meeting to follow 
at the conclusion of the public hearing. 

July 20, 1993 

Carteret Cotnmunity College 

Joslyn Hall 

3505 Ar end ell St. 

Morchead Cir\\ NC 



Comment Procedures: Comments and statements, 
both written and oral, may be presented at the 
hearings. Written comments are encouraged and 
may be submitted to the Marine Fisheries 
Commission, PO Box 769, Morehead City, NC 
28557. These written and oral comments must be 
received no later than 10:30 a.m. , August 2, 1993. 
Oral presentation lengths may be limited depend- 
ing on the number of people that wish to speak at 
the public hearings. 



568 



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PROPOSED RULES 



CHAPTER 3 - MARINE 
FISHERIES 

SUBCHAPTER 31 - GENERAL RULES 

.0001 DEFINITIONS 

(a) All definitions set out in Subchapter IV of 
Chapter 1 1 3 of the General Statutes apply in these 
Rules. 

(b) The following additional terms are hereby 
defined: 

(1) Commercial Fishing Equipment. All 
fishing equipment used in coastal fish- 
ing waters except: 

(A) Seines less than 12 feet in length; 

(B) Spears; 

(C) A dip net having a handle not more 
than eight feet in length and a hoop or 
frame to which the net is attached not 
exceeding 60 inches along the perime- 
ter; 

(D) Hook-and-line and bait-and-line equip- 
ment other than multiple-hook or 
multiple-bait trotline; 

(E) A landing net used to assist in taking 
fish when the initial and primary 
method of taking is by the use of 
hook and line; and 

(F) Cast Nets. 

(2) Fixed or stationary net. A net 
anchored or staked to the bottom, or 
some structure attached to the bottom, 
at both ends of the net; 

(3) Mesh Length. The diagonal distance 
from the inside of one knot to the 
outside of the other knot, when the net 
is stretched hand-tight; 

(4) Possess. Any actual or constructive 
holding whether under claim of 
ownership or not; 

(5) Transport. Ship, carry, or cause to be 
carried or moved by public or private 
carrier by land, sea, or air; 

(6) Use. Employ, set, operate, or permit 
to be operated or employed; 

(7) Purse Gill Nets. Any gill net used to 
encircle fish when the net is closed by 
the use of a purse line through rings 
located along the top or bottom line or 
elsewhere on such net; 

(8) Gill Net. A net set vertically in the 
water to capture fish by entanglement 
by the gills in its mesh as a result of net 
design, construction. mesh size, 
webbing diameter or method in which it 



is used. 

(9) Seine. A net set vertically in the water 
and pulled by hand or power to capture 
fish by encirclement and confining fish 
within itself or against another net, the 
shore or bank as a result of net design, 
construction, mesh size, webbing 
diameter, or method in which it is used. 

(10) Internal Coastal Waters or Internal 
Waters. All coastal fishing waters 
except the Atlantic Ocean; 

(11) Channel Net. A net used to take 
shrimp which is anchored or attached to 
the bottom at both ends or with one end 
anchored or attached to the bottom and 
the other end attached to a boat; 

(12) Dredge. A device towed by engine 
power consisting of a frame, tooth bar 
or smooth bar, and catchbag used in the 
harvest of oysters, clams, crabs, 
scallops, or conchs; 

(13) Mechanical methods for clamming. 
Includes, but not limited to, dredges, 
hydraulic clam dredges, stick rakes and 
other rakes when towed by engine 
power, patent tongs, kicking with 
propellers and/or or deflector plates 
with or without trawls, and any other 
method that utilizes mechanical means 
to harvest clams; 

(14) Mechanical methods for oystering. 
Includes, but not limited to, dredges, 
patent tongs, stick rakes and other rakes 
when towed by engine power and any 
other method that utilizes mechanical 
means to harvest oysters; 

(15) Depuration. Purification or the 
removal of adulteration from live 
oysters, clams, and mussels by any 
natural or artificially controlled means; 

(16) Peeler Crab. A blue crab that has a 
soft shell developing under a hard shell 
and having a definite pink, white, or 
red line or rim on the outer edge of the 
back fin or flipper; 

(17) Length of finfish. Determined by 
measuring along a straight line the 
distance from the tip of the snout with 
the mouth closed to the tip of the 
compressed caudal (tail) fin; 

(18) Licensee. Any person holding a valid 
licence license from the Department to 
take or deal in marine fisheries 
resources. 

(19) Aquaculture operation. An operation 



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569 



PROPOSED RULES 



that produces artificially propagated 
stocks of marine or estuarine resources 
or obtains such stocks from authorized 
sources for the purpose of rearing in a 
controlled environment. A controlled 
environment provides and maintains 
throughout the rearing process one or 
more of the following: predator 
protection, food, water circulation, 
salinity, and/or or temperature controls 
utilizing proven technology not found in 
the natural environment. 
(20) Critical habitat areas are those fragile 
estuarine and marine areas that support 
juvenile and adult populations of 
economically important seafood species, 
as well as forage species important in 
the food chain. Critical habitats include 
nursery areas, beds of submerged 
aquatic vegetation, shellfish producing 
areas, anadromous fish spawning and 
anadromous fish nursery areas, in all 
coastal fishing waters as determined 
through extensive marine and estuarine 
survey sampling. Critical habitats are 
vital for portions, or the entire life 
cycle, including the early growth and 
development of important seafood 
species. 
(A) Beds of submerged aquatic vegetation 
are those habitats in public trust and 
estuarine waters vegetated with one or 
more species of submerged vegetation 
such as eelgrass (Zostera marina), 
shoalgrass (Halodule wrightii) and 
widgeongrass (Ruppia maritima). 
These vegetation beds occur in both 
subtidal and intertidal zones and may 
occur in isolated patches or cover 
extensive areas. In either case, the 
bed is defined by the presence of 
above-ground leaves or the below- 
ground rhizomes and propagules 
together with the sediment on which 
the plants grow. In defining beds of 
submerged aquatic vegetation, the 
Marine Fisheries Commission 
recognizes the Aquatic Weed Control 
Act of 1991 (G.S. 1 13A-220 et. seq.) 
and does not intend the submerged 
aquatic vegetation definition and its 
implementing rules to apply to or 
conflict with the non-development 
control activities authorized by that 
Act. 



(B) Shellfish producing habitats are those 
areas in which economically important 
shellfish, such as, but not limited to 
clams, oysters, scallops, mussels, and 
whelks, whether historically or 
currently, reproduce and survive 
because of such favorable conditions 
as bottom type, salinity, currents, 
cover, and cultch. Included are those 
shellfish producing areas closed to 
shellfish harvest due to pollution. 

(C) Anadromous fish spawning areas are 
defined as those areas where evidence 
of spawning of anadromous fish has 
been documented by direct 
observation of spawning, capture of 
running ripe females, or capture of 
eggs or early larvae. 

(D) Anadromous fish nursery areas are 
defined as those areas in the riverine 
and estuarine systems utilized by post- 
larval and later juvenile anadromous 
fish. 

(21) Intertidal Oyster Bed. A formation. 
regardless of size or shape, formed of 
shell and live oysters of varying 
density. 

Statutory Authority G.S. 113-134; 143B-289.4. 

SUBCHAPTER 3J - NETS, POTS, 

DREDGES. AND OTHER FISHING 

DEVICES 

SECTION .0400 - FISfflNG GEAR. 
ATLANTIC OCEAN 

.0401 FISfflNG GEAR 

(a) The Fisheries Director may, by 
proclamation, close the areas described in 
Paragraph (b) of this Rule to the use of specific 
commercial fishing gear. 

(b) It is unlawful to use commercial fishing gear 
as specified by proclamation at the time and dates 
specified in the proclamation between the Friday 
before Easter through December 31 in the 
following areas when such areas have been closed 
by proclamation: 

( 1 ) All or part of the Atlantic Ocean, up to 
one-half mile from the beach; 

(2) Up to one-half mile in all directions of 
Oregon Inlet; 

(3) Up to one-half mile in all directions of 
Hatteras Inlet; 

(4) Up to one-half mile in all directions of 



570 



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PROPOSED RULES 



of the Cape 



Ocracoke Inlet; 

(5) Up to one-half mile 
Lookout Rock Jetty; 

(6) Up to one-half mile in all directions of 
fishing piers open to the public; 

(7) Up to one-half mile in all directions of 
State Parks; 

(8) Up to one-half mile of marinas as 
defined by the Coastal Resources 
Commission. 

(c) The Fisheries Director shall specify in the 
proclamation the boundaries of the closure through 
the use of maps, legal descriptions, prominent 
landmarks or other permanent type markers. 

(d) The Fisheries Director shall hold a public 
meeting in the affected area before issuance of 
proclamations authorized by this Rule. 

(e) This Rule will be in effect until July 1, 
1995. 

Statutory Authority G.S. 113-133; 113-134; 
113-182; 113-221; 143B-289.4. 

SUBCHAPTER 3R - DESCRIPTIVE 
BOUNDARIES 

.0011 PURSE SEINES PROHIBITED 

(a) It is unlawful to take menhaden or Atlantic 
thread herring by the use of a purse seine from the 
Atlantic Ocean within an area bounded by a line 
extending from Bald Head Lighthouse bearing 
242° (M) to Cape Fear River ship channel buoy 
"7", then bearing 320° (M) to the foot of the 
Yaupon Beach Fishing Pier on Oak Island, then 
following the shoreline eastward to a point near 
Fort Caswell (33° 53' 13" N - 78° 01' 11" W), 
then running 138° (M) to the Bald Head 
Lighthouse. 

(bj It is unlawful to take menhaden or Atlantic 
thread herring by the use of a purse seine from the 
Atlantic Ocean within three miles of the beaches of 
Dare County. 

Statutory Authority 
143B-289.4. 



G.S. 113-134; 113-182; 



iSotice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Coastal Management 
intends to amend rule cited as 15 A NCAC 7H 
.0304. 



1 he proposed effective date of this action is 
December 1, 1993. 

1 he public hearing will be conducted at 4:00 
p.m. on August 3, 1993 at the Brunswick Co. 
Government Complex, Public Assembly Building, 
Bolivia, NC. 

IXeason for Proposed Action; To amend the Cape 
Fear Hazard AEC and to more clearly identify the 
reference maps used by the Commission for estab- 
lishing all of the Inlet Hazard AECs. 

Comment Procedures; All persons interested in 
this matter are invited to attend the public hearing. 
The Coastal Resources Commission will receive 
nuuled written comments postmarked no later than 
Aug. 13, 1993. Any person desiring to present 
lengthy comments is requested to submit a written 
statement for inclusion in the record of proceed- 
ings at the public hearing. Additional information 
concerning the hearing or the proposals may be 
obtained by contacting Dedra Blackwell, Division 
of Coastal Management, PO Box 27687, Raleigh, 
NC 27611-7687. (919) 733-2293. 

CHAPTER 7 - COASTAL 
MANAGEMENT 

SUBCHAPTER 7H - STATE GUIDELINES 

FOR AREAS OF ENVIRONMENTAL 

CONCERN 

SECTION .0300 - OCEAN 
HAZARD AREAS 

.0304 AECs WITHIN OCEAN HAZARD 
AREAS 

The ocean hazard system of AECs contains all of 
the following areas: 

(1) Ocean Erodible Area. This is the area 
in which there exists a substantial possi- 
bility of excessive erosion and signifi- 
cant shoreline fluctuation. The seaward 
boundary of this area is the mean low 
water line. The landward extent of this 
area is determined as follows: 
(a) a distance landward from the first line 
of stable natural vegetation to the 
recession line that would be estab- 
lished by multiplying the long-term 
annual erosion rate times 60, provided 



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PROPOSED RULES 



that, where there has been no 
long-term erosion or the rate is less 
than two feet per year, this distance 
shall be set at 1 20 feet landward from 
the first line of stable natural 
vegetation. For the purposes of this 
Rule, the erosion rates shall be those 
set forth in tables entitled "Long 
Term Annual Erosion Rates updated 
through 1986" and approved by the 
Coastal Resources Commission on 
July 29, 1988 (except as such rates 
may be varied in individual contested 
cases, declaratory or interpretive 
rulings). The tables are available 
without cost from any local permit 
officer or the Division of Coastal 
Management; and 
(b) a distance landward from the 
recession line established in 
Subparagraph (a) of this Paragraph 
Sub-Item (l)(a) of this Rule to the 
recession line that would be generated 
by a storm having a one percent 
chance of being equalled or exceeded 
in any given year. 

(2) The High Hazard Flood Area. This is 
the area subject to high velocity waters 
(including, but not limited to, hurricane 
wave wash) in a storm having a one 
percent chance of being equalled or 
exceeded in any given year, as 
identified as zone VI -30 on the flood 
insurance rate maps of the Federal 
Insurance Administration, U.S. 
Department of Housing and Urban 
Development. In the absence of these 
rate maps, other available base flood 
elevation data prepared by a federal, 
state, or other source may be used, 
provided said data source is approved 
by the CRC. 

(3) Inlet Hazard Area. The inlet hazard 
areas are natural-hazard areas that are 
especially vulnerable to erosion, 
flooding and other adverse effects of 
sand, wind, and water because of their 
proximity to dynamic ocean inlets. 
This area shall extend landward from 
the mean low water line a distance 
sufficient to encompass that area within 
which the inlet will, based on statistical 
analysis, migrate, and shall consider 
such factors as previous inlet territory, 
structurally weak areas near the inlet 



(such as an unusually narrow barrier 
island, an unusually long channel 
feeding the inlet, or an overwash area), 
and external influences such as jetties 
and channelization. These areas shall 
be identified on inlet hazard area maps 
approved — by — the — Coastal — Resources 
Commission. The areas identified as 
suggested Inlet Hazard Areas included 
in the report entitled INLET HAZARD 
AREAS, The Final Report and 
Recommendations to the Coastal 
Resources Commission, 1978, by Loie 
L Priddy and Rick Carraway are 
hereby designated as Inlet Hazard Areas 
except that the Cape Fear Inlet Hazard 
as shown on said map shall not extend 
northeast of the Bald head Island marina 
entrance channel. In all cases, this area 
shall be an extension of the adjacent 
ocean erodible area and in no case shall 
the width of the inlet hazard area be 
less than the width of the adjacent 
ocean erodible area. 
(4) Unvegetated Beach Area. This is a 
dynamic area that is subject to rapid 
unpredictable landform change from 
wind and wave action. The areas in 
this category shall be designated 
following detailed studies by the 
Coastal Resources Commission. These 
areas shall be designated on maps 
approved by the Commission and 
available without cost from any local 
permit officer or the Division of 
Coastal Management. 

Statutory Authority G.S. 113A-107; 113A-113; 
113A-124. 

% ^ ^ :■; :f: ;^ s{e ^ * ^ ~>. * £ x ^: <: ^ ;;," 

/V otice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Commission for Health 
Services intends to amend rules cited as 15A 
NCAC 13A .0001. .0009 and adopt rule cited as 
15A NCAC 13A .0018. 

1 he proposed effective date of this action is 
October 1, 1993. 

1 he public hearing will be conducted at 10:00 
a.m. on July 23, 1993 at the Highway Building. 



572 



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PROPOSED RULES 



First Floor Auditorium, 1 South Wilmington Street, 
Raleigh, North Carolina. 

IXeason for Proposed Action: To establish rules 
in accordance with federal rules which were 
promulgated between July 10, 1992 and February 
16, 1993, primarily standards for the management 
of used oil which are required for North Carolina 
to remain in compliance with EPA authorization 
requirements. 

Lsomment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted to John P. 
Barkley, Department of Justice, P.O. Box 629, 
Raleigh, NC 27602-0629. Persons who wish to 
speak at the hearing should contact John P. 
Barkley at (919) 733-4618. Persons who call in 
advance of the hearing will be given priority 
depending on the number of people that wish to 
speak at the public hearing. Only persons who 
have made comments at a public hearing or who 
have submitted written comments will be allowed 
to speak at the Commission meeting. Comments 
made at the Commission meeting must either 
clarify previous comments or proposed changes 
from staff pursuant to comments made during the 
public hearing process. 

IT IS VERY IMPORTANT THAT ALL INTERESTED 
AND POTENTIALLY AFFECTED PERSONS, GROUPS, 
BUSINESSES, ASSOCIATIONS, INSTITUTIONS OR 
AGENCIES MAKE THEIR VIEWS AND OPINIONS 
KNOWN TO THE COMMISSION FOR HEALTH 
SERVICES THROUGH THE PUBLIC HEARING AND 
COMMENT PROCESS, WHETHER THEY SUPPORT 
OR OPPOSE ANY OR ALL PROVISIONS OF THE 
PROPOSED RULES. THE COMMISSION MA Y MAKE 
CHANGES TO THE RULES AT THE COMMISSION 
MEETING IF THE CHANGES COMPLY WITH G.S. 
150B-21.2(f). 

CHAPTER 13 - SOLID WASTE 
MANAGEMENT 

SUBCHAPTER 13 A - HAZARDOUS WASTE 
MANAGEMENT 

.0001 GENERAL 

(a) The Hazardous Waste Section of the Solid 
Waste Management Division shall administer the 
hazardous waste management program for the 
State of North Carolina. 



(b) In applying the federal requirements 
incorporated by reference throughout this 
Subchapter, the following substitutions or 
exceptions shall apply: 

(1) "Department of Environment, Health, 
and Natural Resources" shall be 
substituted for "Environmental 
Protection Agency" except in 40 CFR 
262.51 through 262.54, 262.56, 262.57 
where references to the Environmental 
Protection Agency shall remain without 
substitution; 

(2) "Secretary of the Department of 
Environment, Health, and Natural 
Resources" shall be substituted for 
"Administrator," "Regional 
Administrator" and "Director" except 
for 40 CFR 262.55 through 262.57, 
264. 12(a), 268.5, 268.6, 268.42(b) and 
268.44 where the references to the 
Administrator, Regional Administrator, 
and Director shall remain without 
substitution; and 

(3) An "annual report" shall be required 
for all hazardous waste generators, 
treaters, storers, and disposers rather 
than a "biennial report". 

(c) In the event that there are inconsistencies or 
duplications in the requirements of those Federal 
rules incorporated by reference throughout this 
Subchapter and the State rules set out in this 
Subchapter, the provisions incorporated by 
reference shall prevail except where the State rules 
are more stringent. 

(d) 40 CFR 260.1 through 260.3 (Subpart A), 
"General," have been incorporated by reference 
including subsequent amendments and editions. 

(e) 40 CFR 260.11, "References", has been 
incorporated by reference including subsequent 
amendments and editions. 

(f) Copies of all materials in this Subchapter 
may be inspected or obtained as follows: 

(1) Persons interested in receiving 
rule-making notices concerning the 
North Carolina Hazardous Waste 
Management Rules must submit a 
written request to the Hazardous Waste 
Section, P.O. Box 27687, Raleigh, 
N.C. 27611-7687. A check in the 
amount of fifteen dollars ($15.00) made 
payable to The Hazardous Waste 
Section must be enclosed with each 
request. Upon receipt of each request, 
individuals will be placed on a mailing 
list to receive notices for one year. 



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573 



PROPOSED RULES 



(2) Material incorporated by reference in 
the Federal Register may be obtained 
from the Superintendent of Documents, 
U.S. Government Printing Office, 
Washington, D.C. 20402 at a cost of 
three — hundred — and — forty — dollars 
($3 4 0.00) four hundred and fifteen 
dollars ($415.00) per year. Federal 
Register materials are codified once a 
year in the Code of Federal Regulations 
and may be obtained at the above 
address for a cost of: 40 CFR 1-51 
thirty s even dollar s ($37.00) thirty one 
dollars ($31.00) , 40 CFR 260-299 forty 
dollars — ($ 4 0.00) thirty s|x dollars 
($36.00) and 40 CFR 100-149 forty 
dollar s ($ 4 0.00) thirty four dollars 
($34.00) , total ©fie — hundred — and 

seventeen dollars ($1 17.00) one 

hundred and one dollars ($101 .00) . 

(3) The North Carolina Hazardous Waste 
Management Rules, including the 
incorporated by reference materials, 
may be obtained from the Hazardous 
Waste Section at a cost of sixteen 
dollars ($16.00). 

(4) All material is available for inspection 
at the Department of Environment, 
Health, and Natural Resources, 
Hazardous Waste Section, 401 Oberlin 
Road, Raleigh, N.C. 

Statutory Authority G.S. 130A-294(c); 150B-21.6. 

.0009 STANDARDS FOR OWNERS/ 
OPERATORS OF HWTSD 
FACILITIES - PART 264 

(a) Any person who treats, stores or disposes of 
hazardous waste shall comply with the 
requirements set forth in this Section. The 
treatment, storage or disposal of hazardous waste 
is prohibited except as provided in this Section. 

(b) 40 CFR 264.1 through 264.4 (Subpart A), 
"General", have been incorporated by reference 
including subsequent amendments and editions. 

(c) 40 CFR 264. 10 through 264. 19 (Subpart B), 
"General Facility Standards", have been 
incorporated by reference including subsequent 
amendments and editions. 

(d) 40 CFR 264.30 through 264.37 (Subpart C), 
"Preparedness and Prevention", have been 
incorporated by reference including subsequent 
amendments and editions. 

(e) 40 CFR 264.50 through 264.56 (Subpart D), 
"Contingency Plan and Emergency Procedures", 



have been incorporated by reference including 
subsequent amendments and editions. 

(f) 40 CFR 264.70 through 264.77 (Subpart E), 
"Manifest System, Recordkeeping, and 
Reporting", have been incorporated by reference 
including subsequent amendments and editions. 

(g) 40 CFR 264.90 through 264.101 (Subpart 
F), "Releases From Solid Waste Management 
Units", have been incorporated by reference 
including subsequent amendments and editions. 
For the purpose of this incorporation by 
reference, "January 26, 1983" shall be substituted 
for "July 26, 1982" contained in 40 CFR 
264.90(a)(2). 

(h) 40 CFR 264.1 10 through 264.120 (Subpart 
G), "Closure and Post-Closure", have been 
incorporated by reference including subsequent 
amendments and editions. 

(i) 40 CFR 264.140 through 264.151 (Subpart 
H), "Financial Requirements", have been 
incorporated by reference including subsequent 
amendments and editions, except that 40 CFR 
264.143(a)(3), (a)(4), (a)(5), (a)(6), 40 CFR 
264.145(a)(3), (a)(4), (a)(5), and 40 CFR 
264.151(a)(1), Section 15 are not incorporated by 
reference. 

(1) The following shall be substituted for 
the provisions of 40 CFR 264.143(a)(3) 
which were not incorporated by 
reference: 

The owner or operator shall deposit the 
full amount of the closure cost estimate 
at the time the fund is established. 
Within 1 year of the effective date of 
these Rules, an owner or operator using 
a closure trust fund established prior to 
the effective date of these Rules shall 
deposit an amount into the fund so that 
its value after this deposit at least 
equals the amount of the current closure 
cost estimate, or shall obtain other 
financial assurance as specified in this 
Section. 

(2) The following shall be substituted for 
the provisions of 40 CFR 264. 143(a)(6) 
which were not incorporated by 
reference: 

After the trust fund is established, 
whenever the current closure cost 
estimate changes, the owner or operator 
shall compare the new estimate with the 
trustee's most recent annual valuation 
of the trust fund. If the value of the 
fund is less than the amount of the new 
estimate, the owner or operator within 



574 



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PROPOSED RULES 



60 days after the change in the cost 
estimate, shall either deposit an amount 
into the fund so that its value after this 
deposit at least equals the amount of 
the current closure cost estimate, or 
obtain other financial assurance as 
specified in this section to cover the 
difference. 

(3) The following shall be substituted for 
the provisions of 40 CFR 264. 145(a)(3) 
which were not incorporated by 
reference: 

(A) Except as otherwise provided in 
Paragraph (i)(3)(B) of this Section, 
the owner or operator shall deposit 
the full amount of the post-closure 
cost estimate at the time the fund is 
established. 

(B) If the Department finds that the owner 
or operator of an inactive hazardous 
waste disposal unit cannot provide 
financial assurance for post-closure 
through any other option (e.g. surety 
bond, letter of credit, or corporate 
guarantee), a plan for annual 
payments to the trust fund over the 
term of the RCRA post-closure permit 
may be established by the Department 
as a permit condition. 

(4) The following additional requirement 
shall apply: 

The trustee shall notify the Department 
of payment to the trust fund, by 
certified mail within ten days following 
said payment to the trust fund. The 
notice shall contain the name of the 
Grantor, the date of payment, the 
amount of payment, and the current 
value of the trust fund, 
(j) 40 CFR 264.170 through 264.178 (Subpart 

I), "Use and Management of Containers", have 

been incorporated by reference including 

subsequent amendments and editions. 
(k) 40 CFR 264.190 through 264.199 (Subpart 

J), "Tank Systems", have been incorporated by 

reference including subsequent amendments and 

editions. 
(1) The following are requirements for Surface 

Impoundments: 

(1) 40 CFR 264.220 through 264.231 
(Subpart K), "Surface Impoundments", 
have been incorporated by reference 
including subsequent amendments and 
editions. 

(2) The following are additional standards 



for surface impoundments: 

(A) The liner system shall consist of at 
least two liners; 

(B) Artificial liners shall be equal to or 
greater than 30 mils in thickness; 

(C) Clayey liners shall be equal to or 
greater than five feet in thickness and 
have a maximum permeability of 1.0 
x 10-7 cm/sec; 

(D) Clayey liner soils shall have the same 
characteristics as described in 
(r)(4)(B)(ii), (iii), (iv), (vi) and (vii) 
of this Rule; 

(E) A leachate collection system shall be 
constructed between the upper liner 
and the bottom liner; 

(F) A leachate detection system shall be 
constructed below the bottom liner; 
and 

(G) Surface impoundments shall be 
constructed in such a manner to 
prevent landsliding. slippage or 
slumping. 

(m) 40 CFR 264.250 through 264.259 (Subpart 
L), "Waste Piles", have been incorporated by 
reference including subsequent amendments and 
editions. 

(n) 40 CFR 264.270 through 264.283 (Subpart 
M), "Land Treatment", have been incorporated by 
reference including subsequent amendments and 
editions. 

(o) 40 CFR 264.300 through 264.317 (Subpart 
N), "Landfills", have been incorporated by 
reference including subsequent amendments and 
editions. 

(p) A long-term storage facility shall meet 
groundwater protection, closure and post-closure, 
and financial requirements for disposal facilities as 
specified in Paragraphs (g), (h), and (i) of this 
Rule. 

(q) 40 CFR 264.340 through 264.351 (Subpart 
O), "Incinerators", have been incorporated by 
reference including subsequent amendments and 
editions. 

(r) The following are additional location 
standards for facilities: 

(1) In addition to the location standards set 
forth in 15A NCAC 13A .0009(c), the 
Department, in determining whether to 
issue a permit for a hazardous waste 
management facility, shall consider the 
risks posed by the proximity of the 
facility to water table levels, flood 
plains, water supplies, public water 
supply watersheds, mines, natural 



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575 



PROPOSED RULES 



resources such as wetlands, endangered 
species habitats, parks, forests, 
wilderness areas, and historical sites, 
and population centers and shall 
consider whether provision has been 
made for adequate buffer zones. The 
Department shall also consider ground 
water travel time, soil pH, soil cation 
exchange capacity, soil composition and 
permeability, slope, climate, local land 
use, transportation factors such as 
proximity to waste generators, route, 
route safety, and method of 
transportation, aesthetic factors such as 
the visibility, appearance, and noise 
level of the facility; potential impact on 
air quality, existence of seismic activity 
and cavernous bedrock. 
(2) The following minimum separation 
distances shall be required of all 
hazardous waste management facilities 
except that existing facilities shall be 
required to meet these minimum 
separation distances to the maximum 
extent feasible: 

(A) All hazardous waste management 
facilities shall be located at least 0.25 
miles from institutions including but 
not limited to schools, health care 
facilities and prisons, unless the 
owner or operator can demonstrate 
that no unreasonable risks shall be 
posed by the proximity of the facility. 

(B) All hazardous waste treatment and 
storage facilities shall comply with the 
following separation distances: all 
hazardous waste shall be treated and 
stored a minimum of 50 feet from the 
property line of the facility; except 
that all hazardous waste with 
ignitable, incompatible or reactive 
characteristics shall be treated and 
stored a minimum of 200 feet from 
the property line of the facility if the 
area adjacent to the facility is zoned 
for any use other than industrial or is 
not zoned. 

(C) All hazardous waste landfills, 
long-term storage facilities, land 
treatment facilities and surface 
impoundments, shall comply with the 
following separation distances: 

(i) All hazardous waste shall be 
located a minimum of 200 feet 
from the property line of the 



facility; 

(ii) Each hazardous waste landfill, 

long-term storage or surface 

impoundment facility shall be 

constructed so that the bottom of 

the facility is 10 feet or more 

above the historical high ground 

water level. The historical high 

ground water level shall be 

determined by measuring the 

seasonal high ground water levels 

and predicting the long-term 

maximum high ground water level 

from published data on similar 

North Carolina topographic 

positions, elevations, geology, and 

climate; and 

(iii) All hazardous waste shall be 

located a minimum of 1 ,000 feet 

from the zone of influence of any 

existing off-site ground water well 

used for drinking water, and 

outside the zone of influence of 

any existing or planned on-site 

drinking water well. 

(D) Hazardous waste storage and 

treatment facilities for liquid waste 

that is classified as TC toxic, toxic, or 

acutely toxic and is stored or treated 

in tanks or containers shall not be 

located: 

(i) in the recharge area of an aquifer 

which is designated as an existing 

sole drinking water source as 

defined in the Safe Drinking 

Water Act, Section .1424(e) [42 

U.S.C. 300h-3(e)] unless an 

adequate secondary containment 

system is constructed, and after 

consideration of applicable factors 

in (r)(3) of this Rule, the owner 

or operator can demonstrate no 

unreasonable risk to public health; 

(ii) within 200 feet of surface water 

impoundments or surface water 

stream with continuous flow as 

defined by the United States 

Geological Survey; 

(iii) in an area that will allow direct 

surface or subsurface discharge to 

WS-I, WS-II or SA waters or a 

Class III Reservoir as defined in 

15A NCAC 2B .0200 and 15A 

NCAC 18C .0102; 

(iv) in an area that will allow direct 



576 



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PROPOSED RULES 



surface or subsurface discharge to 

the watershed for a Class I or II 

Reservoir as defined in 15A 

NCAC 18C .0102; 
(v) within 200 feet horizontally of a 

100-year floodplain elevation; 
(vi) within 200 feet of a seismically 

active area as defined in (c) of 

this Rule; and 
(vii) within 200 feet of a mine, cave, 

or cavernous bedrock. 
(3) The Department may require any 
hazardous waste management facility to 
comply with greater separation 
distances or other protective measures 
necessary to avoid unreasonable risks 
posed by the proximity of the facility to 
water table levels, flood plains, water 
supplies, public water supply 
watersheds, mines, natural resources 
such as wetlands, endangered species 
habitats, parks, forests, wilderness 
areas, and historical sites, and 
population centers or to provide an 
adequate buffer zone. The Department 
may also require protective measures 
necessary to avoid unreasonable risks 
posed by the soil pH, soil cation 
exchange capacity, soil composition and 
permeability, climate, transportation 
factors such as proximity to waste 
generators, route, route safety, and 
method of transportation, aesthetic 
factors such as the visibility, 
appearance, and noise level of the 
facility, potential impact on air quality, 
and the existence of seismic activity and 
cavernous bedrock. In determining 
whether to require greater separation 
distances or other protective measures, 
the Department shall consider the 
following factors: 

(A) All proposed hazardous waste 
activities and procedures to be 
associated with the transfer, storage, 
treatment or disposal of hazardous 
waste at the facility; 

(B) The type of hazardous waste to be 
treated, stored, or disposed of at the 
facility; 

(C) The volume of waste to be treated, 
stored, or disposed of at the facility; 

(D) Land use issues including the number 
of permanent residents in proximity to 
the facility and their distance from the 



facility; 

(E) The adequacy of facility design and 
plans for containment and control of 
sudden and non-sudden accidental 
events in combination with adequate 
off-site evacuation of potentially 
adversely impacted populations; 

(F) Other land use issues including the 
number of institutional and 
commercial structures such as airports 
and schools in proximity to the 
facility, their distance from the 
facility, and the particular nature of 
the activities that take place in those 
structures; 

(G) The lateral distance and slope from 
the facility to surface water supplies 
or to watersheds draining directly into 
surface water supplies; 

(H) The vertical distance, and type of 
soils and geologic conditions 
separating the facility from the water 
table; 
(I) The direction and rate of flow of 
ground water from the sites and the 
extent and reliability of on-site and 
nearby data concerning seasonal and 
long-term groundwater level 
fluctuations; 
(J) Potential air emissions including rate, 
direction of movement, dispersion and 
exposure, whether from planned or 
accidental, uncontrolled releases; and 
(K) Any other relevant factors. 
(4) The following are additional location 
standards for landfills, long-term 
storage facilities and hazardous waste 
surface impoundments: 
(A) A hazardous waste landfill, long-term 
storage, or a surface impoundment 
facility shall not be located: 
(i) In the recharge area of an aquifer 
which is an existing sole drinking 
water source; 
(ii) Within 200 feet of a surface water 
stream with continuous flow as 
defined by the United States 
Geological Survey; 
(iii) In an area that will allow direct 
surface or subsurface discharge to 
WS-I, WS-II or SA waters or a 
Class III Reservoir as defined in 
15A NCAC 2B .0200 and 15A 
NCAC 18C .0102; 
(iv) In an area that will allow direct 



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577 



PROPOSED RULES 



surface or subsurface discharge to 

a watershed for a Class I or II 

Reservoir as defined in 15A 

NCAC 18C .0102; 
(v) Within 200 feet horizontally of a 

100-year flood hazard elevation; 
(vi) Within 200 feet of a seismically 

active area as defined in (c) of 

this Rule; and 
(vii) Within 200 feet of a mine, cave 

or cavernous bedrock. 

(B) A hazardous waste landfill or 
long-term storage facility shall be 
located in highly weathered, relatively 
impermeable clayey formations with 
the following soil characteristics: 

(i) The depth of the unconsolidated 
soil materials shall be equal to or 
greater than 20 feet; 

(ii) The percentage of fine-grained 
soil material shall be equal to or 
greater than 30 percent passing 
through a number 200 sieve; 

(iii) Soil liquid limit shall be equal to 
or greater than 30; 

(iv) Soil plasticity index shall be equal 
to or greater than 15; 

(v) Soil compacted hydraulic 
conductivity shall be a maximum 
of 1 .0 x 10" cm/sec; 

(vi) Soil Cation Exchange Capacity 
shall be equal to or greater than 5 
milliequivalents per 100 grams; 

(vii) Soil Potential Volume Change 
Index shall be equal to or less 
than 4; and 

(viii) Soils shall be underlain by a 
competent geologic formation 
having a rock quality designation 
equal to or greater than 75 
percent unless other geological 
conditions afford adequate 
protection of public health and the 
environment. 

(C) A hazardous waste landfill or 
long-term storage facility shall be 
located in areas of low to moderate 
relief to the extent necessary to 
prevent landsliding or slippage and 
slumping. The site may be graded to 
comply with this standard. 

(5) All new hazardous waste impoundments 
that close with hazardous waste residues 
left in place shall comply with the 
standards for hazardous waste landfills 



in (r)(4) of this Rule unless the 
applicant can demonstrate that 
equivalent protection of public health 
and environment is afforded by some 
other standard. 

(6) The owners and operators of all new 
hazardous waste management facilities 
shall construct and maintain a minimum 
of two observation wells. one 
upgradient and one downgradient of the 
proposed facility; and shall establish 
background groundwater concentrations 
and monitor annually for all hazardous 
wastes that the owner or operator 
proposes to store, treat, or dispose at 
the facility. 

(7) The owners and operators of all new 
hazardous waste facilities shall 
demonstrate that the community has had 
an opportunity to participate in the 
siting process by complying with the 
following: 

(A) The owners and operators shall hold 
at least one public meeting in the 
county in which the facility is to be 
located to inform the community of 
all hazardous waste management 
activities including but not limited to: 
the hazardous properties of the waste 
to be managed; the type of 
management proposed for the wastes; 
the mass and volume of the wastes; 
and the source of the wastes; and to 
allow the community to identify 
specific health. safety and 
environmental concerns or problems 
expressed by the community related to 
the hazardous waste activities 
associated with the facility. The 
owners and operators shall provide a 
public notice of this meeting at least 
30 days prior to the meeting. Public 
notice shall be documented in the 
facility permit application. The 
owners and operators shall submit as 
part of the permit application a 
complete written transcript of the 
meeting. all written material 
submitted that represents community 
concerns, and all other relevant 
written material distributed or used at 
the meeting. The written transcript 
and other written material submitted 
or used at the meeting shall be 
submitted to the local public library 



578 



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PROPOSED RULES 







closest to and in the county of the 
proposed site with a request that the 
information be made available to the 
public. 

(B) For the purposes of this Rule, public 
notice shall include: notification of the 
boards of county commissioners of 
the county where the proposed site is 
to be located and all contiguous 
counties in North Carolina; a legal 
advertisement placed in a newspaper 
or newspapers serving those counties; 
and provision of a news release to at 
least one newspaper, one radio 
station, and one TV station serving 
these counties. Public notice shall 
include the time, place, and purpose 
of the meetings required by this Rule. 

(C) No less than 30 days after the first 
public meeting transcript is available 
at the local public library, the owners 
and operators shall hold at least one 
additional public meeting in order to 
attempt to resolve community 
concerns. The owners and operators 
shall provide public notice of this 
meeting at least 30 days prior to the 
meeting. Public notice shall be 
documented in the facility permit 
application. The owners and 
operators shall submit as part of the 
permit application a complete written 
transcript of the meeting, all written 
material submitted that represents 
community concerns, and all other 
relevant written material distributed or 
used at the meeting. 

(D) The application, written transcripts of 
all public meetings and any additional 
material submitted or used at the 
meetings, and any additions or 
corrections to the application, 
including any responses to notices of 
deficiencies shall be submitted to the 
local library closest to and in the 
county of the proposed site, with a 
request that the information be made 
available to the public until the permit 
decision is made. 

(E) The Department shall consider 
unresolved community concerns in the 
permit review process and impose 
final permit conditions based on 
sound scientific, health, safety, and 
environmental principles as authorized 



by applicable laws or rules. 

is] 40 CFR 264.552 through 264.553 (Subpart 
S), "Corrective Action for Solid Waste 
Management Units", have been incorporated by 
reference including subsequent amendments and 
editions. 

(t) fs) 40 CFR 264.570 through 264.575 
(Subpart W), "Drip Pads", have been incorporated 
by reference including subsequent amendments and 
editions. 

iu) 0) 40 CFR 264.600 through 264.603 
(Subpart X), "Miscellaneous Units", have been 
incorporated by reference including subsequent 
amendments and editions. 

£v) («) 40 CFR 264.1030 through 264.1049 
(Subpart AA), "Air Emission Standards for 
Process Vents", have been incorporated by 
reference including subsequent amendments and 
editions. 

£w] (v) 40 CFR 264.1050 through 264.1079 
(Subpart BB), "Air Emission Standards for 
Equipment Leaks", have been incorporated by 
reference including subsequent amendments and 
editions. 

lx) (w) 40 CFR 264.1100 through 264.1102 
(Subpart DD), "Containment Buildings", have 
been incorporated by reference including 
subsequent amendments and editions. 

(y) {*) Appendices to 40 CFR Part 264 have 
been incorporated by reference including 
subsequent amendments and editions. 

Statutory Authority G.S. 130A-294(c); 150B-21.6. 

.0018 STANDARDS FOR THE 

MANAGEMENT OF USED OIL 

(a) 40 CFR 279.1 (Subpart A), "Definitions", 
has been incorporated by reference including 
subsequent amendments and editions, except that 
the Definition for "Used Oil" is defined by G.S. 
130A-290(b) and is not incorporated by reference. 

ib] 40 CFR 279. 10 through 279. 12 (Subpart B), 
"Applicability", have been incorporated by 
reference including subsequent amendments and 
editions. 

(c] 40 CFR 279.20 through 279.24 (Subpart C), 
"Standards for Used Oil Generators", have been 
incorporated by reference including subsequent 
amendments and editions. 

(d) 40 CFR 279.30 through 279.32 (Subpart D), 
"Standards for Used Oil Collection Centers and 
Aggregation Points", have been incorporated by 
reference including subsequent amendments and 
editions. 

ie] 40 CFR 279.40 through 279.47 (Subpart E), 



8:7 



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579 



PROPOSED RULES 



"Standards for Used Oil Transporter and Transfer 
Facilities", have been incorporated by reference 
including subsequent amendments and editions. 

(fj 40 CFR 279.50 through 279.59 (Subpart F), 
"Standards for Used Oil Processors and Re- 
Refiners", have been incorporated by reference 
including subsequent amendments and editions. 

(£] 40 CFR 279.60 through 279.67 (Subpart G), 
"Standards for Used Oil Burners Who Burn Off- 
Specification Used Oil for Energy Recovery", have 
been incorporated by reference including subse- 
quent amendments and editions. 

ihj 40 CFR 279.70 through 279.75 (Subpart H), 
"Standards for Used Oil Fuel Marketers", have 
been incorporated by reference including subse- 
quent amendments and editions. 

ill 40 CFR 279.80 through 279.81 of (Subpart 
I), "Standards for Use as a Dust Suppressant and 
Disposal of Used Oil" have been incorporated by 
reference including subsequent amendments and 
editions. {Note: 40 CFR 279.82, which addresses 
used oil as a dust suppressant, is specifically not 
incorporated by reference. See also G.S. 130A- 
309. 15 for prohibited acts regarding used oil}. 

(j) Additional State Requirements. 

( 1 ) By July 1 of each year the following 
persons shall notify the Department by 
submitting an annual report listing the 
type and quantity of used oil transport- 
ed, collected, and recycled during the 
preceding calendar year, on Department 
forms: 

(A) Persons transporting more than 500 
gallons of used oil per week over 
public highways. 

(B) Collection facilities that annually 
receive more than 6,000 gallons of 
used oil excluding the volume of used 
oil collected from individuals that 
change their own personal motor oil. 

(C) Facilities that annually recycle more 
than 10,000 gallons of used oil. 

(D) Public used oil collection centers. 

(2) The following persons are not required 
to comply with 15A NCAC 13A 
■ 0018(i)(l): 

(A) An electric utility that generates used 
oil which is reclaimed, recycled, or 
re-refined on-site for use in its 
operations. 

(B) An on-site burner that burns its own 
on-specification used oil provided that 
the facility is in compliance with any 
Air Quality permit requirements 
established by the Department. 



(3) An annual fee of twenty five dollars 
($25.00) shall be paid by all persons 
identified in f5A NCAC 13A 
by July 1 of each 



■ 0018(j)(l)(a)-(c 
year. 



Statutory Authority G.S. 130A-294(b),(c); 150B- 
21.6. 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Commission for Health 
Services intends to amend rule cited as 15 A NCAC 
18A .1022, .1323, .1522, .1620, .2218, .2609, 
.2807 and .3006. 

1 he proposed effective date of this action is 
October 1, 1993. 

1 he public hearing will be conducted at 10:00 
a.m. on July 23, 1993 at the Highway Building, 
First Floor Auditorium, 1 South Wilmington Street, 
Raleigh. North Carolina. 

Reason for Proposed Action: To bring the rules 
in conformance with U.S. Food and Drug Adminis- 
tration Policies. 

KsOmment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted to John P. 
Barkley, Department of Justice, P.O. Box 629, 
Raleigh, NC 27602-0629. Persons who wish to 
speak at the hearing should contact John P. 
Barkley at (919) 733-4618. Persons who call in 
advance of the hearing will be given priority 
depending on the number of people that wish to 
speak at the public hearing. Only persons who 
have made comments at a public hearing or who 
have submitted written comtnents will be allowed 
to speak at the Conunission meeting. Comments 
made at the Commission meeting must either 
clarify previous comments or proposed changes 
from staff pursuant to comments made during the 
public hearing process. 

IT IS VERY IMPORTANT THAT .ALL INTERESTED 
AND POTENTIALLY .AFFECTED PERSONS, GROUPS, 
BUSINESSES, ASSOCIATIONS, INSTITUTIONS OR 



580 



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PROPOSED RULES 



AGENCIES MAKE THEIR VIEWS AND OPINIONS 
KNOWN TO THE COMMISSION FOR HEALTH 
SERVICES THROUGH THE PUBLIC HEARING AND 
COMMENT PROCESS, WHETHER THEY SUPPORT 
OR OPPOSE ANY OR ALL PROVISIONS OF THE 
PROPOSED RULES. THE COMMISSION MA Y MAKE 
CHANGES TO THE RULES AT THE COMMISSION 
MEETING IF THE CHANGES COMPLY WITH G.S. 
15OB-2I.20. 

CHAPTER 18 - ENVIRONMENTAL 
HEALTH 

SUBCHAPTER 18A - SANITATION 

SECTION .1000 - SANITATION OF 
SUMMER CAMPS 

. 1 022 FOOD PROTECTION 

(a) All food while being stored, prepared, 
displayed, and served shall be protected from 
contamination. All perishable foods shall be 
stored at such temperatures as will protect against 
spoilage. All potentially hazardous food shall be 
maintained at safe temperatures (45° F. or below, 
or 140° F. or above) except during necessary 
periods of preparation and serving. Ground beef 
and foods containing ground beef shall be cooked 
to an internal temperature of at least 155° F (68° 
Q. Potentially hazardous foods that have been 
cooked and then refrigerated shall be reheated 
rapidly to 165° F (74° C) or higher throughout 
before being served or before being placed jn a hot 
food storage facility, except that food in intact 
packages from regulated food manufacturing plants 
may initially be reheated to 140° F (60° C). 

(b) Raw fruits and vegetables shall be washed 
thoroughly before use. Stuffings, poultry, stuffed 
meats and poultry, and pork and pork products 
shall be thoroughly cooked before being served. 
Salads made of meat, poultry, potatoes, fish, 
shellfish, or eggs, and other potentially hazardous 
prepared foods shall be prepared, preferably from 
chilled products, with a minimum of manual 
contact, and on surfaces and with utensils which 
are clean and which, prior to use, have been 
sanitized. Individual portions of food once served 
to a person shall not be served again. 

(c) Conveniently located refrigeration facilities, 
hot food storage and display facilities, and 
effective insulated facilities, shall be provided as 
needed to assure the maintenance of all food at 
required temperatures during storage, preparation, 
display, and serving. Each cold-storage facility 
used for the storage of perishable food in a 



non-frozen state shall be provided with an 
indicating thermometer of such type and so 
situated that the thermometer can be easily read. 

(d) Containers of food shall be stored above the 
floor, on clean racks, dollies, slatted shelves, or 
other clean surfaces in such a manner as to be 
protected from splash and other contamination. 

Statutory Authority G.S. 130A-248. 

SECTION .1300 - SANITATION OF 

HOSPITALS: NURSING AND REST 

HOMES: SANITARIUMS: SANATORIUMS: 

EDUCATIONAL AND OTHER 

INSTITUTIONS 

.1323 FOOD PROTECTION 

(a) All food while being stored, prepared, 
displayed, served, and during transportation 
between kitchen, diet kitchen, or patients' rooms, 
shall be protected from contamination. All 
perishable foods shall be stored at such 
temperatures as will protect against spoilage. All 
potentially hazardous food shall be maintained at 
safe temperatures (45° F. or below, or 140° F. or 
above) except during necessary periods of 
preparation and serving. Ground beef and foods 
containing ground beef shall be cooked to an 
internal temperature of at least 155° F (68° C). 
Potentially hazardous foods that have been cooked 
and then refrigerated shall be reheated rapidly to 
165° F (74° C) or higher throughout before being 
served or before being placed in a hot food storage 
facility, except that food in intact packages from 
regulated food manufacturing plants may initially 
be reheated to 140° F (6CT C_L Raw fruits and 
vegetables shall be washed thoroughly before use. 
Stuffings, poultry, stuffed meats and poultry, and 
pork and pork products shall be thoroughly cooked 
before being served. Salads made of meat, 
poultry, potatoes, fish, shellfish or eggs, and other 
potentially hazardous prepared foods shall be 
prepared, preferably from chilled products, with a 
minimum of manual contact, and on surfaces and 
with utensils which are clean and which, prior to 
use, have been sanitized. Individual portions of 
food once served to a person shall not be served 
again. No live animals or fowl shall be allowed in 
any room in which food or drink is prepared or 
stored or in central dining rooms. 

(b) Conveniently located refrigeration facilities, 
hot food storage and display facilities, and 
effective insulated facilities, shall be provided as 
needed to assure the maintenance of all food at 
required temperatures during storage, preparation. 



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581 



PROPOSED RULES 



display, service, and transportation. Each cold- 
storage facility used for the storage of perishable 
food in non-frozen state shall be provided with an 
indicating thermometer of such type and so 
situated that the thermometer can be easily read. 

(c) Containers of food shall be stored above the 
floor, on clean racks, dollies, slatted shelves, or 
other clean surfaces in such a manner as to be 
protected from splash and other contamination. 

Statutory Authority G.S. 130A-235. 

SECTION .1500 - SANITATION OF LOCAL 
CONFINEMENT FACILITIES 

.1522 FOOD PROTECTION 

(a) All food, while being stored, prepared, 
served, and during transportation, shall be 
protected from contamination. All perishable food 
shall be stored at such temperatures as will protect 
against spoilage. All potentially hazardous food 
shall be maintained at safe temperatures (45° F. or 
below, or 140° F. or above) except during 
necessary periods of preparation and serving. 
Ground beef and foods containing ground beef 
shall be cooked to an internal temperature of at 
least 155° F (68° C). Potentially hazardous foods 
that have been cooked and then refrigerated shall 
be reheated rapidly to 165° F (74° C] or higher 
throughout before being served or before being 
placed in a hot food storage facility, except that 
food in intact packages from regulated food 
manufacturing plants may initially be reheated to 
140° F (60° C). Raw fruits and vegetables shall 
be washed thoroughly before use. Stuffings, 
poultry, stuffed meats and poultry, and pork and 
pork products shall be thoroughly cooked before 
being served. Salads made of meat, poultry, 
potatoes, fish, shellfish, or eggs, and other 
potentially hazardous prepared food shall be 
prepared, preferably from chilled products, with a 
minimum of manual contact, and on surfaces and 
with utensils which are clean and which, prior to 
use. have been sanitized. Individual portions of 
food once served shall not be served again. 

(b) No live animals or fowl shall be allowed in 
any room or area in which food is prepared, 
served, or stored. 

(cl Refrigeration facilities, hot food storage 
facilities, and effective insulated facilities, shall be 
provided as needed to assure the maintenance of 
all food at required temperatures during storage, 
preparation, and serving. 

(d) Each cold-storage facility used for the 
storage of perishable food in a non-frozen state 



shall be provided with an indicating thermometer 
of such type and so situated that the thermometer 
can be easily read. 

(e) Containers of food shall be stored above the 
floor, on clean racks, dollies, slatted shelves, or 
other clean surfaces, in such a manner as to be 
protected from splash and other contamination. 

Statutory Authority G.S. 153A-226. 

SECTION .1600 - SANITATION OF 
RESIDENTIAL CARE FACILITIES 

.1620 FOOD PROTECTION 

(a) All foods, while being stored, prepared, 
served, and during transportation, shall be 
protected from contamination. All perishable 
foods shall be stored at such temperatures as will 
protect against spoilage. All potentially hazardous 
food shall be maintained at safe temperatures (45° 
F. or below, or 140° F. or above) except during 
necessary periods of preparation and serving. 
Frozen food shall be kept at such temperatures as 
to remain frozen, except when being thawed for 
preparation or use. Potentially hazardous frozen 
food shall be thawed at refrigerator temperatures 
of 45° F. or below; or quick-thawed as part of the 
cooking process; or by a method approved by the 
sanitarian. An indicating thermometer shall be 
located in each refrigerator. Raw fruits and 
vegetables shall be washed thoroughly before use. 
Ground beef and foods containing ground beef 
shall be cooked to an internal temperature of at 
least 155° F (68° C). Potentially hazardous foods 
that have been cooked and then refrigerated shall 
be reheated rapidly to 165° F (74° C) or higher 
throughout before being served or before being 
placed in a hot food storage facility, except that 
food in intact packages from regulated food 
manufacturing plants may initially be reheated to 
140° F (60° C). Stuffings, poultry, stuffed meats 
and poultry, and pork and pork products, shall be 
thoroughly cooked before being served. Salads 
made of meat, poultry, potatoes, fish, shellfish, or 
eggs, and other potentially hazardous prepared 
food shall be prepared, preferably from chilled 
products, with a minimum of manual contact, and 
on surfaces and with utensils which are clean. 
Portions of food once served to an individual shall 
not be served again. 

(b) Live pets shall not be allowed in any room 
or area in which food is prepared or stored. Live 
pets, unless caged and restricted from the 
immediate eating area, shall not be allowed in any 
room or area in which food is served. 



582 



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PROPOSED RULES 



(c) Refrigeration facilities, hot food storage 
facilities, and effective insulated facilities, shall be 
provided as needed to assure the maintenance of 
all food at required temperatures during storage, 
preparation, and serving. 

(d) Containers of food shall be stored above the 
floor, on clean racks, shelves, or other clean 
surfaces, in such a manner as to be protected from 
splash and other contamination. 

Statutory Authority G.S. 130A-235. 

SECTION .2200 - SANITATION OF BED 
AND BREAKFAST HOMES 

.2218 FOOD PROTECTION 

(a) Foods shall be protected from contamination 
while being stored, prepared, served, and during 
transportation. Perishable foods shall be stored at 
such temperatures as will protect against spoilage. 
Potentially hazardous food shall be maintained at 
safe temperatures (45° F. or below, or 140° F. or 
above) except during necessary periods of 
preparation and serving. Frozen food shall be kept 
at such temperatures as to remain frozen, except 
when being thawed for preparation or use. 
Potentially hazardous frozen food shall be thawed 
at refrigerator temperatures of 45° F. or below; or 
quick-thawed as part of the cooking process; or by 
a method approved by the sanitarian. An 
indicating thermometer shall be located in each 
refrigerator. Raw fruits and vegetables shall be 
washed thoroughly before use. Ground beef and 
foods containing ground beef shall be cooked to an 
internal temperature of at least 155° F (68° C). 
Potentially hazardous foods that have been cooked 
and then refrigerated shall be reheated rapidly to 
165° F (74° C) or higher throughout before being 
served or before being placed in a hot food storage 
facility, except that food in intact packages from 
regulated food manufacturing plants may initially 
be reheated to 140° F (60° C). Stuffings, poultry, 
stuffed meats and poultry, and pork and pork 
products shall be thoroughly cooked before being 
served. Salads made of meat, poultry, potatoes, 
fish, shellfish, or eggs, and other potentially 
hazardous prepared food, shall be prepared, 
preferably from chilled products, with a minimum 
of manual contact. Portions of food once served 
to an individual shall not be served again. 

(b) Live pets shall not be allowed in any room 
or area in which food is prepared or stored. Live 
pets, unless caged and restricted from the 
immediate eating area, shall not be allowed in any 
room or area in which food is served. 



(c) Refrigeration facilities, hot food storage 
facilities, and effective insulated facilities shall be 
provided as needed to assure the maintenance of 
all food at required temperatures during storage, 
preparation, and serving. 

(d) Containers of food shall be stored above the 
floor, on clean racks, shelves, or other clean 
surfaces, in such a manner as to be protected from 
splash and other contamination. 

Statutory Authority G.S. 130A-250. 

SECTION .2600 - SANITATION OF 

RESTAURANTS AND OTHER 

FOODHANDLING ESTABLISHMENTS 

.2609 REFRIGERATION: THAWING: AND 
PREPARATION OF FOOD 

(a) All potentially hazardous foods requiring 
refrigeration shall be kept at or below 45° F (7° 
C), except when being prepared or served. An air 
temperature thermometer accurate to +3° F 
(±1.5°C) shall be provided in all refrigerators. 

(b) Thawing of potentially hazardous foods shall 
be done in refrigerated units at a temperature not 
to exceed 45° F (7° C), or under cold running 
water no warmer than 70° F (21 ° C), or as a part 
of the cooking process. 

(c) Employees preparing food shall have used 
antibacterial soap, dips or hand sanitizers 
immediately prior to food preparation or shall use 
clean, plastic disposable gloves or sanitized 
utensils during food preparation. This requirement 
is in addition to all handwashing requirements in 
Section .2600 of these Rules. Food shall be 
prepared with the least possible manual contact, 
with suitable utensils and on preparation surfaces 
that have been cleaned and rinsed prior to use. 
Preparation surfaces which come in contact with 
potentially hazardous foods shall be sanitized as 
provided in Rule .2618(c) of this Section. Raw 
fruits and raw vegetables shall be thoroughly 
washed with potable water before being cooked or 
served. 

(d) Potentially hazardous foods requiring 
cooking shall be cooked to heat all parts of the 
food to a temperature of at least 140° F (60° C) 
except as follows: 

(1) poultry, poultry stuffings, stuffed 
meats, and stuffings containing meat 
shall be cooked to heat all parts of the 
food to at least 165° F (74°C) with no 
interruption of the cooking process, and 

(2) pork and any food containing pork shall 
be cooked to heat all parts of the food 



8:7 



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July 1, 1993 



583 



PROPOSED RULES 



to at least 150° F (66° C), and 

(3) ground beef and foods containing 
ground beef shall be cooked to an 
internal temperature of at least 155° F 
(68° C). and 

(4) 0) rare roast beef shall be cooked to an 
internal temperature of at least 130° F 
(54° C), and 

(5) {Aj rare beef steak shall be cooked to a 
temperature of 130° F (54° C) unless 
otherwise ordered by the immediate 
consumer. 

(e) Liquid, or uncooked frozen, dry eggs and 
egg products shall be used only for cooking and 
baking purposes. 

(f) Potentially hazardous foods that have been 
cooked and then refrigerated shall be reheated 
rapidly to 165° F (74° C) or higher throughout 
before being served or before being placed in a hot 
food storage facilityr except that, food m intact 
packages from regulated food manufacturing plants 
may initially be reheated to 140° F (60° C). 

(g) All potentially hazardous foods, except rare 
roast beef, shall be stored at temperatures of 140° 
F (60° C) or above; or 45° F (7° C) or below 
except during necessary periods of preparation and 
serving. Rare roast beef shall be stored at a 
temperature of at least 130° F (54° C) or above; 
or 45° F (7° C) or below. 

(h) All potentially hazardous food that is 
transported must be maintained at temperatures as 
noted in Paragraph (g) of this Rule. 

(i) A metal stem-type thermometer accurate to 
±2° F (±1° C) shall be available to check food 
temperatures. 

Statutory Authority G.S. 130A-248. 

SECTION .2800 - SANITATION OF CHILD 
DAY CARE FACILITIES 

.2807 FOOD PREPARATION 

(a) Food shall be prepared with the least 
possible manual contact, with appropriate utensils, 
and on surfaces that have been cleaned, rinsed, 
and sanitized prior to use in order to prevent 
cross-contamination. 

(b) Whenever there is a change in processing 
from raw to ready-to-eat foods, the new operation 
shall begin with food-contact surfaces and utensils 
which are clean and have been sanitized. 

(c) Raw fruits and raw vegetables shall be 
thoroughly washed with potable water before being 
cooked or served. 

(d) Potentially hazardous foods requiring 



cooking shall be cooked to heat all parts of the 
food to a temperature of at least 140° F, except 
that: 

( 1 ) Poultry, poultry stuffings, stuffed meats 
and stuffings containing meat shall be 
cooked to heat all parts of the food to 
at least 165° F with no interruption of 
the cooking process; 

(2) Pork and any food containing pork shall 
be cooked to heat all parts of the food 
to at least 165° F with no interruption 
in the cooking process; 

(3) Ground beef and foods containing 
ground beef shall be cooked to an 
internal temperature of at least 155° F 
(68° C); 

(4) 0) Rare roast beef shall be cooked to 
an internal temperature of at least 130° 
F with no interruption in the cooking 
process. 

(e) Raw animal products cooked in a microwave 
oven shall be rotated during cooking to compensate 
for uneven heat distribution and shall be heated an 
additional 25° F (13.9° C) to compensate for 
shorter cooking times. 

(f) Potentially hazardous foods that have been 
cooked and then refrigerated, shall be reheated 
rapidly to an internal temperature of 165° F or 
higher before being served or before being placed 
in a hot food storage unitT except that, food In 
intact packages from regulated food manufacturing 
plants may initially be reheated to 140° F (60° 
C). Steam tables, warmers, and similar hot food 
holding units are prohibited for the rapid reheating 
of potentially hazardous foods. Potentially 
hazardous foods reheated in a microwave oven 
shall be heated an additional 25° F (13.9° C). 

(g) Metal stem-type numerically scaled 
indicating thermometers, accurate to ±2° F, shall 
be provided and used to assure the attainment and 
maintenance of proper internal cooking, holding, 
or refrigeration temperatures of all potentially 
hazardous foods. 

(h) Potentially hazardous foods shall be thawed: 

(1) In refrigerated units at a temperature 
not to exceed 45° F; 

(2) Under potable running water of a 
temperature of 70° F or below, with 
sufficient water velocity to agitate and 
float off loose food particles into the 
overflow; 

(3) In a microwave oven only when the 
food will be immediately transferred to 
conventional cooking equipment as part 
of a continuous cooking process or 



584 



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July 1, 1993 



PROPOSED RULES 



when the entire, uninterrupted cooking 
process takes place in the microwave 
oven; or 
(4) As part of the conventional cooking 
process. 

Statutory Authority G.S. 110-91. 

SECTION .3000 - BED AND BREAKFAST 

INNS 

.3006 FOOD SOURCES AND PROTECTION 

(a) All food shall be from approved sources, 
clean, wholesome, free from adulteration and 
spoilage, safe for human consumption and shall be 
stored, handled, served, or transported in such a 
manner as to prevent contamination, adulteration 
or spoilage. Only Grade "A" milk shall be used. 
All food storage shall be at least 15 inches (38.1 
cm) above the floor or otherwise arranged to 
permit the thorough cleaning. 

(b) Foods that are spoiled or otherwise unfit for 
human consumption shall be immediately disposed 
of as garbage. 

(c) Potentially hazardous foods shall be kept at 
or below 45° F (7° C), except when being 
prepared or served. An air temperature 
thermometer accurate to ± 3 ° F ( + 1 1 12 ° C) shall 
be provided in all refrigerators. 

(d) Thawing of potentially hazardous food shall 
be done in refrigerated units at a temperature not 
to exceed 45° F (7° C) or under cold running 
water no warmer than 70° F (21 ° C), or as a part 
of the cooking process. 

(e) Employees preparing food shall have used 
anti-bacterial soap, dips, or hand sanitizers imme- 
diately prior to food preparation or shall use clean, 
plastic disposable gloves or sanitized utensils 
during food preparation. This requirement is in 
addition to all handwashing requirements in Rule 
.3007 of this Section. 

(f) Preparation surfaces which come in contact 
with potentially hazardous food shall be cleaned 
and sanitized as provided in Rule .3008 of this 
Section. 

(g) Potentially hazardous foods requiring cook- 
ing shall be cooked to heat all parts of the food to 
a temperature of at least 140° F (60° C) with no 
interruptions of the cooking process, except as 
follows: 

( 1 ) poultry shall be cooked to heat all parts 
to at least 165° F (74° C). and 

(2) pork shall be cooked to heat all parts of 
the food to at least 150° F (66° C), and 

(3) potentially hazardous foods that have 



been cooked and then refrigerated shall 

be reheated rapidly to 165° F (74° C) 

or higher throughout before being 

served or placed in hot food storage^ 

except that, food in intact packages 

from regulated food manufacturing 

plants may initially be reheated to 140° 

F (60° C), and 

(4) Ground beef and foods containing 

ground beef shall be cooked to an 

internal temperature of at least 155° F 

(681 CL 

(h) Raw eggs or foods containing uncooked eggs 

shall not be served. Pasteurized egg products may 

be substituted for raw eggs. 

(i) A metal stem-type thermometer accurate to 
±2° F (±1° C) shall be available to check food 
temperatures. 

(j) Food once served to a customer shall not be 
served again and not left for the next customer. 
Packaged food, other than potentially hazardous 
food, that is still packaged and is still wholesome 
may be re s erved re-served . 

(k) Pets shall not be allowed at any time in any 
room or area in which food is prepared or stored. 
Pets, unless caged and restricted from the immedi- 
ate eating area, shall not be allowed in any room 
or area in which food is served. 

Statutory Authority G.S. 130A-248. 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Commission for Health 
Services intends to amend rule cited as 15 A NCAC 
19A .0202. 

1 he proposed effective date of this action is 
October 1. 1993. 

1 he public hearing will be conducted at 10:00 
a.m. on July 23. 1993 at the Highway Building. 
First Floor Auditorium, 1 South Wilmington Street, 
Raleigh, North Carolina. 

MVeason for Proposed Action: SB 799 was intro- 
duced and language in this bill would serve to 
strengthen the control of HIV and replace current 
Communicable Disease rules under 15A NCAC 
19A .0202(11). 



8:7 



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July 1, 1993 



585 



PROPOSED RULES 



Ksomment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted to John P. 
Barkley, Department of Justice, P. O. Box 629, 
Raleigh, NC 27602-0629. Persons who wish to 
speak at the hearing should contact John P. 
Barkley at (919) 733-4618. Persons who call in 
advance of the hearing will be given priority 
depending on the number of people that wish to 
speak at the public hearing. Only persons who 
have made comments at a public hearing or who 
have submitted written comments will be allowed 
to speak at the Conunission meeting. Comments 
made at the Commission meeting must either 
clarify previous comments or proposed changes 
from staff pursuant to comments made during the 
public hearing process. 

IT IS VERY IMPORTANT THAT .ALL INTERESTED 
AND POTENTIALLY AFFECTED PERSONS, GROUPS, 
BUSINESSES, ASSOCIATIONS, INSTITUTIONS OR 
AGENCIES MAKE THEIR VIEWS AND OPINIONS 
KNOWN TO THE COMMISSION FOR HEALTH 
SERVICES THROUGH THE PUBLIC HEARING AND 
COMMENT PROCESS, WHETHER THEY SUPPORT 
OR OPPOSE ANY OR ALL PROVISIONS OF THE 
PROPOSED RULES. THE COMMISSION MAY MAKE 
CHANGES TO THE RULES AT THE COMMISSION 
MEETING IF THE CHANGES COMPLY WITH G.S. 
150B-2 1.2(f). 

CHAPTER 19 - HEALTH: EPIDEMIOLOGY 

SUBCHAPTER 19A - COMMUNICABLE 
DISEASE CONTROL 

SECTION .0200 - CONTROL MEASURES 
FOR COMMUNICABLE DISEASES 

.0202 CONTROL MEASURES - HIV 

The following are the control measures for the 
Acquired Immune Deficiency Syndrome (AIDS) 
and Human Immunodeficiency Virus (HIV) infec- 
tion: 

(1) Infected persons shall: 

(a) refrain from sexual intercourse unless 
condoms are used; exercise caution 
when using condoms due to possible 
condom failure; 

(b) not share needles or syringes; 

(c) not donate or sell blood, plasma, 
platelets, other blood products, semen, 
ova, tissues, organs, or breast milk; 

(d) have a skin test for tuberculosis; 



(e) notify future sexual intercourse partners 
of the infection; if the time of initial 
infection is known, notify persons who 
have been sexual intercourse and needle 
partners since the date of infection; 
and, if the date of initial infection is 
unknown, notify persons who have 
been sexual intercourse and needle 
partners for the previous year. 

(2) The attending physician shall: 

(a) give the control measures in Paragraph 
Item (1) of this Rule to infected 
patients, in accordance with 15A 
NCAC 19A .0210; 

(b) If the attending physician knows the 
identity of the spouse of an 
HIV-infected patient and has not, with 
the consent of the infected patient, 
notified and counseled the spouse 
appropriately, the physician shall list 
the spouse on a form provided by the 
Division of Epidemiology and shall 
mail the form to the Division; the 
Division will undertake to counsel the 
spouse; the attending physician's 
responsibility to notify exposed and 
potentially exposed persons is satisfied 
by fulfilling the requirements of 
Subparagraph Sub-Item (2)(a) and (b) of 
this Rule; 

(c) advise infected persons concerning 
proper clean-up of blood and other 
body fluids; 

(d) advise infected persons concerning the 
risk of perinatal transmission and 
transmission by breastfeeding. 

(3) The attending physician of a child who is 
infected with HIV and who may pose a 
significant risk of transmission in the 
school or day care setting because of 
open, oozing wounds or because of 
behavioral abnormalities such as biting 
shall notify the local health director. The 
local health director shall consult with the 
attending physician and investigate the 
circumstances. 

(a) If the child is in school or scheduled for 
admission and the local health director 
determines that there may be a 
significant risk of transmission, the 
local health director shall consult with 
an interdisciplinary committee, which 
shall include appropriate school 
personnel, a medical expert, and the 
child's parent or guardian to assist in 



586 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



PROPOSED RULES 



$ 



* 



♦ 



the investigation and determination of 
risk. The local health director shall 
notify the superintendent or private 
school director of the need to appoint 
such an interdisciplinary committee, 
(i) If the superintendent or private school 
director establishes such a committee 
within three days of notification, the 
local health director shall consult with 
this committee, 
(ii) If the superintendent or private school 
director does not establish such a 
committee within three days of notifi- 
cation, the local health director shall 
establish such a committee. 

(b) If the child is in school or scheduled for 
admission and the local health director 
determines, after consultation with the 
committee, that a significant risk of 
transmission exists, the local health 
director shall: 

(i) notify the parents; 

(ii) notify the committee; 

(iii) assist the committee in determining 
whether an adjustment can be made to 
the student's school program to elimi- 
nate significant risks of transmission; 

(iv) determine if an alternative educational 
setting is necessary to protect the 
public health; 

(v) instruct the superintendent or private 
school director concerning appropriate 
protective measures to be implement- 
ed in the alternative educational set- 
ting developed by appropriate school 
personnel; and 

(vi) consult with the superintendent or 
private school director to determine 
which school personnel directly in- 
volved with the child need to be 
notified of the HIV infection in order 
to prevent transmission and ensure 
that these persons are instructed re- 
garding the necessity for protecting 
confidentiality. 

(c) If the child is in day care and the local 
health director determines that there is 
a significant risk of transmission, the 
local health director shall notify the 
parents that the child must be placed in 
an alternate child care setting that elimi- 
nates the significant risk of transmis- 
sion. 

(4) When health care workers or other per- 
sons have a needlestick or nonsexual 



non-intact skin or mucous membrane 
exposure to blood or body fluids that 
poses a significant risk of HIV transmis- 
sion, the following shall apply: 

(a) When the source person is known: 

(i) The attending physician or occupa- 
tional health care provider responsible 
for the exposed person, if other than 
the attending physician of the person 
whose blood or body fluids is the 
source of the exposure, shall notify 
the attending physician of the source 
that an exposure has occurred. The 
attending physician of the source 
person shall discuss the exposure with 
the source and shall test the source 
for HIV infection unless the source is 
already known to be infected. 
The attending physician of the exposed 
person shall be notified of the infection 
status of the source, 
(ii) The attending physician of the ex- 
posed person shall inform the exposed 
person about the infection status of 
the source, offer testing for HIV 
infection as soon as possible after 
exposure and at reasonable intervals 
up to one year to determine whether 
transmission occurred, and, if the 
source person was HIV infected, give 
the exposed person the control mea- 
sures listed in Subparagraphs Sub- 
Item (l)(a) through (c) of this Rule. 
The attending physician of the ex- 
posed person shall instruct the ex- 
posed person regarding the necessity 
for protecting confidentiality. 

(b) When the source person is unknown, 
the attending physician of the exposed 
person shall inform the exposed person 
of the risk of transmission and offer 
testing for HIV infection as soon as 
possible after exposure and at reason- 
able intervals up to one year to deter- 
mine whether transmission occurred. 

(c) A health care facility may release the 
name of the attending physician of a 
source person upon request of the 
attending physician of an exposed per- 
son. 

(5) The attending physician shall notify the 
local health director when the physician, 
in good faith, has reasonable cause to 
suspect a patient infected with HIV is not 
following or cannot follow control mea- 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



587 



PROPOSED RULES 



sures and is thereby causing a significant 
risk of transmission. Any other person 
may notify the local health director when 
the person, in good faith, has reasonable 
cause to suspect a person infected with 
HIV is not following control measures 
and is thereby causing a significant risk 
of transmission. 

(6) When the local health director is notified 
pursuant to Paragraph Item (5) of this 
Rule, of a person who is mentally ill or 
mentally retarded, the local health direc- 
tor shall confer with the attending mental 
health physician or appropriate mental 
health authority and the physician, if any, 
who notified the local health director to 
develop an appropriate plan to prevent 
transmission. 

(7) The Director of Health Services of the 
North Carolina Department of Correction 
and the prison facility administrator shall 
be notified when any person confined in 
a state prison is determined to be infected 
with HIV. If the prison facility adminis- 
trator, in consultation with the Director 
of Health Services, determines that a 
confined HIV infected person is not 
following or cannot follow prescribed 
control measures, thereby presenting a 
significant risk of HIV transmission, the 
administrator and the Director shall 
develop and implement jointly a plan to 
prevent transmission, including making 
appropriate recommendations to the unit 
housing classification committee. 

(8) The local health director shall ensure that 
the health plan for local jails include 
education of jail staff and prisoners about 
HIV. how it is transmitted, and how to 
avoid acquiring or transmitting this infec- 
tion. 

(9) Local health departments shall provide 
testing for HIV infection with individual 
pre- and post-test counseling at no charge 
to the patient. Third party payors may 
only be billed for HIV counseling and 
testing when such services are provided 
as a part of family planning and maternal 
and child health services. By August 1, 
1991, the State Health Director shall 
designate a minimum of 16 local health 
departments to provide anonymous test- 
ing. Beginning September 1. 1991. only 
cases of confirmed HIV infection identi- 
fied by anonvmous tests conducted at 



local health departments designated as 
anonymous testing sites pursuant to this 
Subparagraph Sub-Item shall be reported 
in accordance with 15A NCAC 19A 
.0102(a)(3). All other cases of confirmed 
HIV infection shall be reported in accor- 
dance with 15A NCAC 19A .0102(a)(1) 
and (2). Effective September 1. 1994, 
anonymous testing shall be discontinued 
and all cases of confirmed HIV infection 
shall be reported in accordance with 15A 
NCAC 19A .0102(a)(1) and (2). 
(10) Appropriate counseling for HIV testing 
shall include individualized pre- and 
post-test counseling which provides risk 
assessment, risk reduction guidelines, 
appropriate referrals for medical and 
psychosocial services, and, when the 
person tested is determined to be infected 
with HIV. control measures. 

ft-B A person charged with an offense that 

involves nonconsensual vaginal, anal, or 
oral int e rcourse, or that involves vaginal, 
anal, or oral intercourse with a child 12 
years old or less shall be tested for HIV 
infection if: 

fa) probable cause has been found or an 

indictment has been i ss ued; 

i&) the victim notifies the local or state 

health director and reque s ts information 
concerning the HIV status of the defen 
dant; and 

fe-) the local or state health director deter 

min es that the alleged sexual contact 
involved in th e offense would pose a 
s ignificant ri s k of transmission of HIV 
if the defendant were HIV infected. — If 
in custody of the Department of Corree 
tion. the person shall be tested by the 
Department of Correction and if not in 
custody, the person shall be tested by 
the local health department. — The De 
pnrtment of Correction shall inform the 
local health dir e ctor of all s uch te s t 
result s . — The local health director shall 
inform the victim of the results of the 
test, counsel the victim appropriately, 
and in s truct the victim regarding the 
necessity for protecting confidentiality. 
(11) A local health department or the 
Department may release information 
regarding an infected person pursuant to 
G.S. 130A-143(3) only when the local 
health department or the Department has 
provided direct medical care to the infect- 



£2) 



588 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



PROPOSED RULES 



ed person and refers the person to or 
consults with the health care provider to 
whom the information is released. 
f+3) £12} Notwithstanding Rule .0201(d) of 
this Section, a local or state health direc- 
tor may require, as a part of an isolation 
order issued in accordance with G.S. 
130A-145, compliance with a plan to 
assist the individual to comply with con- 
trol measures. The plan shall be de- 
signed to meet the specific needs of the 
individual and may include one or more 
of the following available and appropriate 
services: 

(a) substance abuse counseling and treat- 
ment; 

(b) mental health counseling and treatment; 
and 

(c) education and counseling sessions about 
HIV, HIV transmission, and behavior 
change required to prevent transmis- 
sion. 

{44) (13) The Division of Epidemiology shall 
conduct a partner notification program to 
assist in the notification and counseling of 
partners of HIV infected persons. All 
partner identifying information obtained 
as a part of the partner notification pro- 
gram shall be destroyed within two years. 

Statutory Authority G.S. 130A-133; 130A-135; 
130A-144; 130A-145; 130A-1 48(h). 

Notice is hereby given in accordance with G.S. 
150B-21. 2 that the EHNR - Commission for Health 
Services intends to amend rule cited as 15 A NCAC 
19B .0501. 



used rather than chemicals used with the 
breathalyzer. 

Comment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted to John P. 
Barkley, Department of Justice, P.O. Box 629, 
Raleigh, NC 27602-0629. Persons who wish to 
speak at the hearing should contact John P. 
Barkley at (919) 733-4618. Persons who call in 
advance of the hearing will be given priority 
depending on the number of people that wish to 
speak at the public hearing. Only persons who 
have made comments at a public hearing or who 
have submitted written comments will be allowed 
to speak at the Commission meeting. Comments 
made at the Commission meeting must either 
clarify previous comments or proposed changes 
from staff pursuant to comments made during the 
public hearing process. 

IT IS VERY IMPORTANT THAT ALL INTERESTED 
AND POTENTIALLY AFFECTED PERSONS, GROUPS, 
BUSINESSES, ASSOCIATIONS, INSTITUTIONS OR 
AGENCIES MAKE THEIR VIEWS AND OPINIONS 
KNOWN TO The Commission FOR HEALTH SERVICES 
THROUGH THE PUBLIC HEARING AND COMMENT 
PROCESS, WHETHER THEY SUPPORT OR OPPOSE 
ANY OR ALL PROVISIONS OF THE PROPOSED 
RULES. The Commission MAY MAKE CHANGES TO 
THE RULES AT The Commission MEETING IF THE 
CHANGES COMPLY WITH G.S. 150B-21 .2(f). 

CHAPTER 19 - HEALTH: EPIDEMIOLOGY 

SUBCHAPTER 19B - INJURY CONTROL 

SECTION .0500 - ALCOHOL SCREENING 
TEST DEVICES 



1 he proposed effective date of this action is 
October I, 1993. 

1 he public hearing will be conducted at 10:00 
a.m. on July 23, 1993 at the Highway Building, 
First Floor Auditorium, 1 South Wilmington Street, 
Raleigh, North Carolina. 

Reason for Proposed Action: To change the 
name of the Chemical Tests for Alcohol Branch to 
the Forensic Tests for Alcohol Branch. Tliis 
change is due to the new infrared technology being 



.0501 SCREENING TESTS FOR ALCOHOL 
CONCENTRATION 

(a) This Section governs the requirement of G.S. 
20-16.3 that the commission examine devices 
suitable for use by law enforcement officers in 
making on-the-scene tests of drivers for alcohol 
concentration and that the commission approve 
these devices and their manner of use. In examin- 
ing devices for making chemical t es t s for alcohol 
analyses , the commission finds that at present only 
screening devices for testing the breath of drivers 
are suitable for on-the-scene use by law enforce- 
ment officers. 

(b) This Section does not address or in any way 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



589 



PROPOSED RULES 



restrict the use of screening tests for impairment 
other than those based on chemical te s ting for 
alcohol concentration analyses , including various 
psychophysical tests for impairment. 

Statutory Authority G.S. 20-16.3; 20-1 6. 3A. 



l\otice is hereby given in accordance with G.S. 
150B-21.2that the EHNR - Commission for Health 
Services intends to amend rule cited as 15A NCAC 
21 G .0107 and .0508. 

1 he proposed effective date of this action is 
October 1. 1993. 

1 he public hearings will be conducted at 10:00 
a.m. on July 23. 1993 at the Highway Building. 
First Floor Auditorium. 1 South Wilmington Street, 
Raleigh, North Carolina. 

MYeason for Proposed Action: To ensure that 
there will be no misunderstanding or misinterpreta- 
tion of the policy that has always been in place 
regarding not billing families whose incomes are 
below the Federal poverty level. The DECs have 
never imposed charges for services provided to 
families whose income level is below the Federal 
poverty level. TJiis amendment clarifies that 
police', which has always been understood and 
practiced in the DECs, statewide. 

(comment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted to John P. 
Barkley, Department of Justice. P. O. Box 629, 
Raleigh, NC 27602-0629. Persons who wish to 
speak at the hearing should contact John P. 
Barkley at (919) 733-4618. Persons who call in 
advance of the hearing will be given priority 
depending on the number of people that wish to 
speak at the public hearing. Only persons who 
have made comments at a public hearing or who 
have submitted written comments will be allowed 
to speak at the Convnission meeting. Comments 
made at the Convnission meeting must either 
clarify previous comments or proposed changes 
from staff pursuant to convnents made during the 
public hearing process. 



IT IS VERY IMPORTANT THAT ALL INTERESTED 
AND POTENTIALLY AFFECTED PERSONS, GROUPS, 
BUSINESSES, ASSOCIATIONS, INSTITUTIONS OR 
AGENCIES MAKE THEIR VIEWS AND OPINIONS 
KNOWN TO THE COMMISSION FOR HE.ALTH 
SERVICES THROUGH THE PUBLIC HE.ARING AND 
COMMENT PROCESS, WHETHER THEY SUPPORT 
OR OPPOSE ANY OR .ALL PROVISIONS OF THE 
PROPOSED RULES. THE COMMISSION MAY MAKE 
CHANGES TO THE RULES AT THE COMMISSION 
MEETING IF THE CHANGES COMPLY WITH G.S. 
150B-21.2lf). 

CHAPTER 21 - HEALTH: PERSONAL 
HEALTH 

SUBCHAPTER 21 G - DEVELOPMENTAL 

EVALUATION CENTERS: SPECIALIZED 

SERVICES BRANCH 

SECTION .0100 - GENERAL POLICIES 

.0107 FEES 

Fe«s for services provided in the operation of a 
Developmental Evaluation Center shall be 
determined on the basis of a schedule of co- 
payments related to income and family size . 
Copies of this schedule of co-payments may be 
inspected at. or obtained from, any Developmental 
Evaluation Center or the program office. Centers 
shall also attempt to collect from other appropriate 
third-party funding sources. No one will be 
denied service based solely on an inability or 
failure to pay. Charges will not be imposed on 
families whose income is below the Federal 
poverty level . 

Statutory Authority G.S. 130A-5(3); 130A-124. 

SECTION .0500 - DEC CONTRACT FUNDS 

.0508 CLIENT AND THIRD PARTY FEES 

(a) DEC contractual agencies are required to bill 
all available and appropriate reimbursement 
sources including but not limited to insurance 
companies, Medicaid, other agency providers or 
parents/guardians. Charges will not be imposed 
on families whose income is below the Federal 
poverty level . Outpatient services cannot be billed 
to the Children's Special Health Services Program 
by a DEC. 

(b) These fees will be based on a public 
schedule of charges as determined by the DEC 
Program and on the Title XIX Memorandum of 
Understanding between the contractor and the 
division governing Medicaid reimbursement. 



590 



1:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



PROPOSED RULES 



(c) All fee collections must be budgeted and 
expended during the fiscal year earned or within 
the subsequent fiscal year. Fees will be utilized, 
upon approval of the program, to either expand 
program services or to reduce the amount of state 
appropriations. 

(d) All fees held in escrow and brought forward 
from the prior fiscal year shall be expended prior 
to the expenditure of state appropriations. 

(e) All fees earned in excess of the original 
budgeted amount cannot be budgeted or expended 
without prior written approval of the program 
director and the division. 

Statutory Authority G.S. 130A-124. 

TITLE 21 - OCCUPATIONAL 
LICENSING BOARD 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the NC Board of Medical Examin- 
ers intends to adopt rules cited as 21 NCAC 32B 
.0801 - .0808. 

1 he proposed effective date of this action is 
October 1. 1993. 

1 he public hearing will be conducted at 9:00 
a.m. on July 20, 1993 at the NC Board of Medical 
Examiners, 1203 Front Street, Raleigh, NC. 



Reason for Proposed Action: 
21 NCAC 32B .0801 - Defines the practice param- 
eters of a physician issued a license limited to a 
NC medical school faculty. 

21 NCAC 32B .0802 - Requires applicants for a 
NC medical faculty license to submit verification of 
an appointment at a NC medical school. 
21 NCAC 32B .0803 - Requires the applicant to 
complete an application form regarding back- 
ground information. 

21 NCAC 32B .0804 - Requires application fee. 
21 NCAC 32B .0805 - Requires certified photo- 
graph and graduation certification from applicant 's 
medical school in order to assure the identity of 
the applicant. 

21 NCAC 32B .0806 - Requires that applicant 
request status of licensure reports from every state 
in which he has been licensed and the Board's 
staff requests a report from the AMA on each 
applicant. 
21 NCAC 32B .0807 - Requires letters of recom- 



mendation as part of the credentialing. 
21 NCAC 32B .0808 - Requires a personal inter- 
view before issuance of licensure. 

Ksonvnent Procedures: Persons interested may 
present written or oral statements relevant to the 
actions proposed at a hearing to be held as indi- 
cated above. Written statements not presented at 
the hearing should be directed by August 2, 1993 
to the following address: Administrative Proce- 
dures, NCBME, PO Box 26808, Raleigh, NC 
27611-6808. 

CHAPTER 32 - BOARD OF 
MEDICAL EXAMINERS 

SUBCHAPTER 32B - LICENSE 
TO PRACTICE MEDICINE 

SECTION .0800 - MEDICAL SCHOOL 
FACULTY LICENSE 

.0801 DEFINITION OF PRACTICE 

The license for Medical School Faculty limits the 
practice of its holder to the confines of the 
physician's employment as a member of the 
medical faculty at one of the following North 
Carolina medical schools: 



Duke University School of Medicine; 
University of North Carolina at Chapel 
Hill School of Medicine; 
East Carolina University School of Medi- 
cine; and 

Bowman Gray School of Medicine, 
license will not be used to engage in a 



Oi 
12} 

lU 

14) 

This 
practice outside the realm of the medical school. 

Statutory Authority G.S. 90-12. 

.0802 ELIGIBILITY REQUIREMENTS 

(a) To be eligible, the applicant shall have 
received full-time appointment as either a lecturer, 
assistant professor, associate professor or full 
professor at one of the following medical schools: 

( 1) Duke University School of Medicine; 

(2) University of North Carolina at Chapel 
Hill School of Medicine; 

(3) Bowman Gray School of Medicine; 

(4) East Carolina University School of 
Medicine. 

(b) The applicant must submit verification and 
details of the appointment signed by the Dean or 
Acting Dean of the Medical School in which the 
applicant is to practice. 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



591 



PROPOSED RULES 



Statutory Authority G.S. 90-12. 

.0803 APPLICATION 

An applicant must complete the Board's applica- 
tion form which will include information regarding 
personal, educational and professional background. 

Statutory Authority G.S. 90-6; 90-12. 

.0804 FEE 

A nonrefundable fee of one hundred fifty dollars 
($150.00) is due at the time of application . 

Statutory Authority G.S. 90-15. 

.0805 CERTIFIED PHOTOGRAPH AND 
CERTIFICATE OF GRADUATION 

An applicant must submit a recent photograph, at 
least 2 J_/2 inches by 3 1/4 inches, certified on the 
back as a true likeness of the applicant by the dean 
or other official of the applicant's medical school 
indicating the applicant's date of graduation from 
medical school. This certification must bear the 
signature of the dean or other official of the 
medical school and the seal of the medical school. 



view before the Executive Secretary. Assistant 
Executive Secretary, a Board member, an agent of 
the Board or the full Board. 



Statutory Authority G.S. 90-12. 



Statutory Authority G.S. 90-12. 

.0806 VERIFICATION OF MEDICAL 
LICENSURE 

An applicant must request that reports be submit- 
ted to the Board directly from all states m which 
the applicant has ever been licensed to practice 
medicine indicating the status of the applicant's 
license and whether or not the license has been 
revoked, suspended, surrendered, or placed on 
probationary terms. 

An AMA Physician Profile js requested of AMA 
by the Board. 

Statutory Authority G.S. 90-12. 

.0807 LETTERS OF RECOMMENDATION 

An applicant must request that no less than three 
letters of recommendation be submitted to the 
Board on his behalf. Two of these letters must be 
from physicians. One of the letters must be from 
someone who has known the applicant for a period 
of ten years. 

Statu ton' Authority G.S. 90-11: 90-12. 



.0808 PERSONAL INTERVIEW 

The applicant must appear for a personal inter- 



592 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



LIST OF RULES CODIFIED 



1 he List of Rules Codified 


is a listing of rules that were filed with OAH in the month indicated. 


K.ey: 










Citation 


= 


Title, Chapter, Subchapter and Rule(s) 




AD 


= 


Adopt 




AM 


= 


Amend 




RP 


= 


Repeal 




With Chgs 


= 


Final text differs from proposed text 




Corr 


= 


Typographical errors or changes that requires no rulemaking 




Eff. Date 


= 


Date rule becomes effective 




Temp. Expires 




Rule was filed as a temporary rule and expires on this date or 180 days 



NORTH CAROLINA ADMINISTRATIVE CODE 







MAY 93 




[TLE 


DEPARTMENT 


TITLE 


DEPARTMENT 


2 


Agriculture 


17 


Revenue 


4 


Commerce 


21 


Occupational Licensing Boards 


10 


Human Resources 




14 - Cosmetic Art Examiners 


11 


Insurance 




18 - Electrical Contractors 


12 


Justice 




19 - Electrolysis 


13 


Labor 




36 - Nursing 


15A 


Environment, Health, 
and Natural Resources 




42 - Optometry 



Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


2 NCAC 38 .0701 




/ 




/ 




06/01/93 




43 L .0401 - .0403 




/ 




/ 




10/01/93 




.0405 




/ 




/ 




10/01/93 




48A .0206 - .0207 




/ 




/ 




06/01/93 




.0212 






/ 






06/01/93 




.0216 




/ 




/ 




06/01/93 




.0224 






/ 






06/01/93 




.1702 




/ 




/ 




06/01/93 




.1703 




/ 








06/01/93 




4 NCAC 2R .1502 










/ 









8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



593 



M^UUttilUtt 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


19L .0101 










/ 






4 NCAC 19L .0103 




/ 




/ 




06/01/93 




.0104- .0106 










/ 






.0301 




/ 




/ 




06/01/93 




.0302 










/ 






.0401 




/ 








06/01/93 




.0403 - .0404 




/ 








06/01/93 




.0407 - .0408 




/ 








06/01/93 




.0501 - .0502 




/ 








06/01/93 




.0505 




/ 








06/01/93 




.0801 










/ 






.0802 




/ 








06/01/93 




.0805 




/ 








06/01/93 




.0901 - .0903 




/ 








06/01/93 




.0904 










/ 






.0905 






/ 






06/01/93 




.0906 - .0907 




/ 








06/01/93 




.0908 - .0909 




/ 




/ 




06/01/93 




.0910 - .0911 




/ 








06/01/93 




.0912 - .0913 




/ 




/ 




06/01/93 




.0914 


/ 






/ 




06/01/93 




.1001 - .1002 




/ 








06/01/93 




.1003 - .1004 




/ 




/ 




06/01/93 




.1006 










/ 






.1007 




/ 








06/01/93 




.1008 - .1010 










/ 






.1011 




/ 




/ 




06/01/93 




.1012 




/ 








06/01/93 




.1013 










/ 






.1101 




/ 




/ 




06 01 93 




.1102 










/ 






.1103 - .1104 




/ 








06/01/93 




.1105 










/ 









594 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



LIST OF RULES CODIFIED 










Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


.1201 - .1203 










/ 






4 NCAC 19L .1301 










/ 






.1302 - .1303 




/ 








06/01/93 




.1501 - .1504 




/ 








06/01/93 




.1505 




/ 




/ 




06/01/93 




.1601 - .1602 










/ 






.1603 




/ 








06/01/93 




.1604 




/ 




/ 




06/01/93 




10 NCAC 14L .0602 


/ 










05/10/93 


180 DAYS 


19G .0502 




/ 








06/01/93 




26D .0012 




/ 




/ 




06/01/93 




26N .0201 


/ 






/ 




06/01/93 




41E .0514 




/ 




/ 




07/01/93 




50B .0313 










/ 






.0403 










/ 






11 NCAC 11H .0001 


/ 






/ 




06/01/93 




12 NCAC 7D .0809 




/ 




/ 




06/01/93 




13 NCAC 7C .0102 




/ 








06/01/93 




.0105 - .0106 






/ 






06/01/93 




.0108 - .0109 






/ 






06/01/93 




15A NCAC IK .0402 




/ 








06/01/93 


180 DAYS 


2B .0503 










/ 






.0508 










/ 






11 .0101 




/ 




/ 




06/01/93 




.0102 




/ 




/ 




05/01/93 




.0104 




/ 




/ 




06/01/93 




.0105 




/ 








05/01/93 




.0106 




/ 




/ 




06/01/93 




.0107 




/ 








05/01/93 




.0108 




/ 




/ 




06/01/93 




.0111 




/ 








05/01/93 




.0113 




/ 




/ 




05/01/93 




.0114 - .0115 




/ 








05/01/93 







8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



595 





LIST OF RULES CODIFIED 










Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


.0117 


/ 






/ 




06/01/93 




15A 


NCAC 11 .0118 


/ 










05/01/93 




.0201 




/ 








05/01/93 




.0205 




/ 




/ 




06/01/93 




.0207 




/ 




/ 




06/01/93 




.0210 




/ 








05/01/93 




.0212 - .0214 




/ 




/ 




06/01/93 




.0301 




/ 




/ 




05/01/93 




.0303 - .0304 




/ 








05/01/93 




.0305 




/ 




/ 




06/01/93 




.0307 - .0309 




/ 








01/01/94 




.0311 - .0312 




/ 








01/01/94 




.0314 - .0315 




/ 








01/01/94 




.0316 




/ 




/ 




06/01/93 




.0318 




/ 








05/01/93 




.0321 




/ 




/ 




05/01/93 




.0324 - .0325 




/ 




/ 




06/01/93 




.0326 




/ 








05/01/93 




.0328 




/ 




/ 




01/01/94 




.0331 




/ 








01/01/94 




.0335 




/ 








01/01/94 




.0336 






/ 






05/01/93 




.0337 




/ 




/ 




06/01/93 




.0338 




/ 




/ 




05/01/93 




.0343 




/ 








05/01/93 




.0344 - .0345 




/ 




/ 




06/01/93 




.0346 




/ 








05/01/93 




.0348 - .0349 




/ 




/ 




01/01/94 




.0352 




/ 








05/01/93 




.0353 




/ 








01/01/94 




.0501 




/ 








05/01/93 




.0502 




/ 








01/01/94 




.0506 




/ 








01/01/94 







596 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


.0507 




/ 




/ 




06/01/93 




15A NCAC 11 .0510 




/ 








06/01/93 




.0513 - .0514 




/ 








01/01/94 




.0516 




/ 








01/01/94 




.0518 




/ 




/ 




06/01/93 




.0520 




/ 








01/01/94 




.0601 




/ 








01/01/94 




.0602 




/ 




/ 




06/01/93 




.0603 - .0604 




/ 




/ 




01/01/94 




.0605 - .0606 




/ 








05/01/93 




.0607- .0610 




/ 








01/01/94 




.0701 




/ 








05/01/93 




.0702 




/ 




/ 




01/01/94 




.0703 




/ 




/ 




06/01/93 




.0804 




/ 




/ 




01/01/94 




.0901 




/ 




/ 




01/01/94 




.0902 




/ 








05/01/93 




.0905 




/ 




/ 




01/01/94 




.0906 - .0907 




/ 








01/01/94 




.0910 




/ 








01/01/94 




.1001 




/ 








05/01/93 




.1002 




/ 








01/01/94 




.1004 




/ 








01/01/94 




.1006 




/ 








05/01/93 




.1102 - .1104 




/ 








05/01/93 




.1201 




/ 




/ 




01/01/94 




.1202- .1203 




/ 








05/01/93 




.1205 




/ 




/ 




06/01/93 




.1206 




/ 




/ 




01/01/94 




.1208 




/ 








01/01/94 




.1210 




/ 




/ 




06/01/93 




.1214 




/ 




/ 




01/01/94 




.1215 




/ 




/ 




06/01/93 







8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



597 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


.1218 




/ 








05/01/93 




15A NCAC 11 .1220 - .1221 




/ 








05/01/93 




.1223 




/ 








05/01/93 




.1225 




/ 








01/01/94 




.1227 




/ 








05/01/93 




.1229 




/ 








05/01/93 




.1230 




/ 




/ 




01/01/94 




.1233 




/ 








01/01/94 




.1238 




/ 




/ 




01/01/94 




.1239 - .1240 




/ 








05/01/93 




.1241 - .1242 




/ 








01/01/94 




.1301 




/ 




/ 




01/01/94 




.1304 




/ 








01/01/94 




.1306 




/ 








05/01/93 




.1307 




/ 








01/01/94 




.1308 




/ 




/ 




05/01/93 




.1309 - .1310 




/ 








05/01/93 




.1313 




/ 








05/01/93 




.1314 




/ 








01/01/94 




.1315 




/ 








01/01/94 




.1320 




/ 




/ 




01/01/94 




.1324 




/ 








01/01/94 




.1403 




/ 








05/01/93 




.1405 




/ 




/ 




06/01/93 




.1412 




/ 








06/01/93 




.1414 - .1415 




/ 




/ 




06/01/93 




.1418 




/ 








05/01/93 




.1420 


/ 






/ 




05/01/93 




.1421 


/ 






/ 




06/01/93 




.1422 


/ 










05/01/93 




.1501 - .1504 


/ 






/ 




01/01/95 




.1505 - .1506 


/ 










01/01/95 




.1507 - .1513 


/ 






/ 




01/01/95 







598 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



LIST OF RULES CODIFIED 



I 



* 



I 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


.1514 


/ 










01/01/95 




15A NCAC 11 .1515 


/ 






/ 




01/01/95 




.1516 


/ 










01/01/95 




.1517 


/ 






/ 




01/01/95 




.1601 - .1602 


/ 






/ 




01/01/94 




.1603 - .1604 


/ 










01/01/94 




.1605 - .1606 


/ 






/ 




01/01/94 




.1607 - .1609 


/ 










01/01/94 




.1610 


/ 






/ 




01/01/94 




.1611 


/ 










01/01/94 




.1612 


/ 






/ 




01/01/94 




.1613 - .1614 


/ 










01/01/94 




.1615 - .1617 


/ 






/ 




01/01/94 




.1618 - .1620 


/ 










01/01/94 




.1621 


/ 






/ 




01/01/94 




.1622 - .1637 


/ 










01/01/94 




.1638 


/ 






/ 




01/01/94 




.1639 


/ 










01/01/94 




.1640 


/ 






/ 




01/01/94 




.1641 - .1652 


/ 










01/01/94 




13B .0201 




/ 








05/19/93 


180 DAYS 


18A .2537 




/ 








05/11/93 


180 DAYS 


17 NCAC 3 A .0001 - .0003 






/ 






06/01/93 




3B .0101 






/ 






06/01/93 




.0102 




/ 








06/01/93 




.0105 






/ 






06/01/93 




.0107 






/ 






06/01/93 




.0109 




/ 








06/01/93 




.0111 - .0112 




/ 








06/01/93 




.0201 - .0204 






/ 






06/01/93 




.0302 










/ 






3C .0001 - .0002 






/ 






06/01/93 




.0008 


/ 










06/01/93 







8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



599 





LIST OF RULES CODIFIED 










Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


6A .0001 - .0005 






/ 






06/01/93 




17 


NCAC 6B .0104 - .0107 




/ 








06/01/93 




.0110 - .0111 






/ 






06/01/93 




.0112 - .0117 




/ 








06/01/93 




.0605 - .0607 




/ 








06/01/93 




.0608 






* 






06/01/93 




.0609 - .0610 




/ 








06/01/93 




.061 1 






/ 






06/01/93 




.3201 - .3202 






/ 






06/01/93 




.3203 - .3204 




/ 








06/01/93 




.3205 






/ 






06/01/93 




.3206 - .3207 




/ 








06/01/93 




.3208 - .3209 






/ 






06/01/93 




.3401 






/ 






06/01/93 




.3402 




/ 








06/01/93 




.3403 






/ 






06/01/93 




.3404 




/ 








06/01/93 




.3405 






/ 






06/01/93 




.3408 




/ 








06/01/93 




.3503 




/ 








06/01/93 




.3513 




/ 








06/01/93 




.3522 






/ 






06/01/93 




.3526 - .3527 




/ 








06/01/93 




.3701 






/ 






06/01/93 




.3714 




/ 








06/01/93 




.3716 




/ 








06/01/93 




.3719 




/ 








06/01/93 




.3720 






/ 






06/01/93 




.3723 - .3724 




/ 








06/01/93 




.3804 




/ 








06/01/93 




.3901 - .3904 




/ 








06/01/93 




.4001 - .4002 






/ 






06/01/93 




.4003 - .4004 




/ 








06/01/93 







600 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



I 



* 



♦ 



LIST OF RULES CODIFIED 










Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


.4006 




/ 








06/01/93 




17 NCAC 6B .4007 - .4008 






/ 






06/01/93 




.4101 




/ 








06/01/93 




.4103 




/ 








06/01/93 




.4104 - .4105 






/ 






06/01/93 




6C .0102 






/ 






06/01/93 




.0105 - .0106 






/ 






06/01/93 




.0107 




/ 








06/01/93 




.0109 






/ 






06/01/93 




.0111 






/ 






06/01/93 




.0112 




/ 








06/01/93 




.0123 




/ 








06/01/93 




.0125 






/ 






06/01/93 




.0126 




/ 








06/01/93 




.0201 




/ 








06/01/93 




.0202 






/ 






06/01/93 




.0203 - .0204 




/ 








06/01/93 




6D .0101 






/ 






06/01/93 




.0102 




/ 








06/01/93 




.0206 






/ 






06/01/93 




.0208 - .0210 




/ 








06/01/93 




.0211 






/ 






06/01/93 




1 1 .0207 - .0209 










/ 






.0212 - .0213 










/ 






.0219 










/ 






21 NCAC 14A .0101 




/ 




/ 




06/01/93 




14N .0106 




/ 








06/01/93 




.0113 




/ 




/ 




06/01/93 




18B .0701 




/ 








06/01/93 




19 .0401 - .0402 


/ 






/ 




06/01/93 




.0403 


/ 










06/01/93 




.0601 


/ 






/ 




06/01/93 




36 .0220 




/ 




/ 




06/01/93 







8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



601 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


42E .0104 


/ 






/ 




06/01/93 




21 NCAC 42E .0201 




/ 




/ 




06/01/93 




.0302 




/ 




/ 




06/01/93 





# 



♦ 



602 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



RRC OBJECTIONS 



1 he Rules Review Commission (RRC) objected to the following rules in accordance with G.S. 
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d). 



ADMINISTRATION 

Department of Administration's Minimum Criteria 

/ NCAC 39 .0101 - Purpose 

1 NCAC 39 .0301 - Exceptions to Minimum Criteria 

Environmental Policy Act 

1 NCAC 25 .0213 - Environmental Policy Act Advisory Committee 

Agency Revised Rule 
1 NCAC 25 .0401 - Method of Compliance 

Agency Revised Rule 
1 NCAC 25 .0506 - Review Process 

Agency Revised Rule 

1 NCAC 25 .0603 - Format and Content 

Agency Revised Rule 

Veterans Affairs 

/ NCAC 26C .0005 - Fee 
Agency Revised Rule 

AGRICULTURE 

Plant Industry 

2 NCAC 48A .0206 - The Transportation of Bees- 

Agency Revised Rule 
2 NCAC 48A .0207 - Requirements for Issuance of Permit 
Agency Revised Rule 

COMMERCE 

Cemetery Commission 

4 NCAC 5B .0103 - Hearings- 
Agency Revised Rule 

4NCAC5D .0101 - Report 
Agency Revised Rule 

4NCAC5D .0201 - Report 
Agency Revised Rule 

4 NCAC 5D .0202 - Delivery- 
Agency Revised Rule 

Community Assistance 

4 NCAC 19L .0913 - Grant Closeouts 



RRC Objection 06/17/93 
RRC Objection 06/17/93 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 



RR C Objection 06/1 7/93 
Obj. Removed 06117/93 



RRC Objection 05/19/93 

Obj. Removed 05/19/93 

RRC Objection 05/19/93 

Obj. Removed 05/19/93 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 



RRC Objection 05/19/93 



8:7 



NORTH CAROLINA REGISTER 



July I, 1993 



603 



RRC OBJECTIONS 



Agency' Revised Rule 
4 NCAC 19L .1101 - Reporting 

Agency Revised Rule 
4 NCAC 19L .1505 - Preliminary Awards 

Agency Revised Rule 
4 NCAC 19L . 1604 - Preliminary- Awards 

Agency Revised Rule 

Savings Institutions Division: Savings Institutions Commission 

4 NCAC 16G .0311 - Required Provisions in Plan of Conversion 
Agency Revised Rule 
Agency Revised Rule 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management 

15A NCAC 7H .1205 - Specific Conditions 
Rule Returned to Agency 



Ohj. Removed 


05/19/93 


RRC Objection 


05/19/93 


Obj. Removed 


05/19/93 


RRC Objection 


05/19/93 


Obj. Removed 


05/19/93 


RRC Objection 


05/19/93 


Obj. Removed 


05/19/93 



RRC Objection 03/18/93 
RRC Objection 03/18/93 
Obj. Removed 04/15/93 



RRC Objection 03/18/93 
04/15/93 



Environmental Health 

15A NCAC 18A .0911 - Marinas: Docking Facilities: Other Mooring Areas RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/17/93 

ISA NCAC 18A . 1601 - Definitions RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/17/93 

15A NCAC 18A .1725 - Water Qualify RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/17/93 

15A NCAC 18A .2618 - Cleaning of Equipment and Utensils RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/17/93 



Environmental Management 

15A NCAC 2D .0903 - Recordkeeping: Reporting: Monitoring 

Agency Revised Rule 
ISA NCAC 2H .1110 - Implementation 

Agency Responded 

Agency Responded 

Agency Responded 

Laboratorv Services 



RR C Objection 06/1 7/93 

Obj. Removed 06/17/93 

RRC Objection 02/18/93 

Obj. Cont'd 03/18/93 

Obj. Cont'd 05/19/93 

Obj. Cont'd 06/17/93 



ISA NCAC 20D .0234 - Criteria & Procedures: Decert. /Denial /Downgrading 
Agency Revised Rule 



RRC Objection 03/18/93 
Obj. Removed 04/15/93 



Radiation Protection 

ISA NCAC 11 .0108 - Additional Requirements RRC Objection 05/19/93 

Agency Revised Rule Obj. Removed 05/19/93 

15A NCAC 11 .0207 - Issuance of Notice of Registration RRC Objection 05/19/93 

Agency Revised Rule Obj. Removed 05/19/93 

15A NCAC 11 .0212 - Modifications: Revocation: Termination of Registrants RRC Objection 05'19/93 

Agency Revised Rule Obj. Removed 05/19/93 

15A NCAC 11 .0214 - Training/Educational Requirements for Equipment Svcs RRC Objection 05/19/93 



604 



8:7 



XORTH CAROLINA REGISTER 



July I 1993 



RRC OBJECTIONS 



Agency Revised Rule 
15A NCAC 11 .0337 - Issuance of Specific Licenses 

Agency Revised Rule 
15 A NCA C 11 . 0507 - Leak Testing and Source Tagging 

Agency Revised Rule 
15A NCAC 11 .1215 - Conditions of License 

Agency Revised Rule 



Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



05/19/93 
05/19/93 
05/19/93 
05/19/93 
05/19/93 
05/19/93 
05/19/93 



WTP Operators Certification Commission 

15 A NCAC 8A .0102 - Creation RRC Objection 06/17/93 

Agency Repealed Rule Obj. Removed 06/1 7/93 

15 A NCAC 8A .0202 - Duties and Requirements RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/1 7/93 

15A NCAC 8B .0102 - Applying for Examination RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/17/93 

15A NCAC 8B .0109 - Requirement for Notification of Change in Address RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/17/93 

15A NCAC 8B .0201 - Grade I Wastewater Treatment Plant Operator RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/17/93 

15 A NCA C 8B . 0205 - Definitions RRC Objection 06/1 7/93 

Agency Revised Rule Obj. Removed 06/17/93 

15 A NCAC 8B .0207 - Grade 11 Collection System Operator RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/1 7/93 

ISA NCAC 8B .0208 - Grade 111 Collection System Operator RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/17/93 

15A NCAC 8B .0209 - Grade IV Collection System Operator RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/17/93 

15 A NCAC 8B .0210 - Subsurface System Operator RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/17/93 

ISA NCAC 8B .0211 - Land Application/Residuals Operator RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/17/93 

ISA NCAC 8B .0212 - Spray Irrigation Operator RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/1 7/93 

ISA NCA C 8B . 0502 - Refunding of Fees RRC Objection 06/1 7/93 

Agency Revised Rule Obj. Removed 06/17/93 

15A NCAC 8C .0002 - Rating Scale/Classification/Wastewater Trtmt Facilities RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/17/93 

HUMAN RESOURCES 

Children's Services 



10 NCAC 41 E .0514 - Child Care & Development: Health 

Agency Revised Rule 
10 NCAC 41 G .0705 - Medical Program 

Agency Revised Rule 
10 NCAC 41 Q .0201 - Personnel 

Agency Responded 

Rule Returned to Agency 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Cont'd 



04/15/93 
05/19/93 
04/15/93 
04/15/93 
04/15/93 
05/19/93 
06/17/93 



Departmental Rules 



10 NCAC 1M .0002 - Complaints 
Agency Revised Rule 



RRC Objection 
Obj. Removed 



04/15/93 
04/15/93 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



605 



RRC OBJECTIONS 



10 NCAC 1M .0003 - Invest/ gat ion 
Agency Revised Rule 



RRC Objection 
Obj. Removed 



04/15/93 
04/15/93 



Facility Services 

10 NCA C 3C . 2020 - Definitions RRC Objection 04/15/93 

Agency Revised Rule Obj. Removed 04/15/93 

10 NCAC 3C .2021 - Physician Reqs /Inpatient Rehabilitation Facilities or Units RRC Objection 04/15/93 

Agency Revised Rule Obj. Removed 04/15/93 

10 NCAC 3C .2030 - Physical Facility Reqs 'Inpatient Rehab Facilities or Units RRC Objection 04/15/93 

Agency Revised Rule Obj. Removed 04/15/93 

10 NCAC 3C .2033 - Deemed Status /Inpatient Rehabilitation Facilities or Units RRC Objection 04/15/93 

Agency Revised Rule Obj. Removed 04/15/93 

10 NCA C 3H .1 150 - Definitions RRC Objection 04/15/93 

Agency Revised Rule Obj. Removed 04/15/93 

10 NCAC 3H .1151 - Physician Reqs /Inpatient Rehabilitation Facilities or Units RRC Objection 04/15/93 

Agency Revised Rule Obj. Removed 04/15/93 

10 NCAC 3H . 1160 - Physical Facility Reqs /Inpatient Rehab Facilities or Units RRC Objection 04/15/93 

Agency Revised Rule Obj. Removed 04/15/93 

10 NCAC 3H .1163 - Deemed Status /Inpatient Rehabilitation Facilities or Units RRC Objection 04/15/93 

Agency Revised Rule Obj. Removed 04/15/93 

Mental Health: General 

10 NCAC 14K .0315 - Treatment/Habilitation Planning and Documentation RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/17/93 

INSURANCE 

Actuarial Services 



// NCAC 16 .0303 - Annual Filing 
Agency Revised Rule 



RRC Objection 
Obj. Removed 



04/15/93 
04/15/93 



Consumer Services 



// NCAC 4 .0428 - Enforcement 
Agency Revised Rule 
Agency Repealed Rule 



RRC Objection 
RRC Objection 
Obj. Removed 



03/18/93 
03/18/93 
04/15/93 



Financial Evaluation Division 

11 NCAC 11B .0607 - Application - Employers 

Agency Revised Rule 
11 NCAC 11B .0610 - Application - Groups 

Agency Revised Rule 
11 NCAC 11H .0001 - Definitions 

Agency Revised Rule 

JUSTICE 

Private Protective Services 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



03/18/93 
04/15/93 
03/18/93 
04/15/93 
05/19/93 
05/19/93 



12 NCAC 7D .0809 - Authorized Firearms 
Agency Revised Rule 



RRC Objection 
Obj. Removed 



04/15/93 
05/19/93 



606 



8:7 



NORTH CAROLINA REGISTER 



July I, 1993 



RRC OBJECTIONS 



LICENSING BOARDS AND COMMISSIONS 

Electrolysis Examiners 

21 NCAC 19 .0401 - Infection Control Standards 
Agency Revised Rule 

Landscape Architects 

21 NCAC 26 .0203 - General Obligations of Practice: Mandatory Standards 
Agency Repealed Ride 

21 NCAC 26 .0205 - Forms of Practice 

21 NCAC 26 .0207 - Application of Professional Seal 

21 NCAC 26 .0208 - Improper Conduct 

21 NCAC 26 .0209 - Unprofessional Conduct 

21 NCAC 26 .0210 - Dishonest Practice 

21 NCAC 26 .0211 - Incompetence 

21 NCAC 26 .0301 - Examination 

Medical Examiners 

21 NCAC 32B .0315 - Ten Year Qualification 
Agency Revised Rule 

Real Estate Commission 



RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 



RRC 
RRC 
RRC 
RRC 
RRC 
RRC 
RRC 



Objection 
Objection 
Objection 
Objection 
Objection 
Objection 
Objection 



RRC Objection 
Obj. Removed 



05/19/93 
05/19/93 



06/17/93 
06/17/93 

06/17/93 
06/17/93 
06/17/93 
06/17/93 
06/17/93 
06/17/93 
06/17/93 



06/17/93 
06/17/93 



21 NCAC 58A .0110 - Broker-in-Charge RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/17/93 

21 NCAC 58A .0506 - Salesman to be Supervised by Broker RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/1 7/93 

21 NCAC 58C .0305 - Course Scheduling RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/17/93 

REVENUE 

Ad Valorem Tax Division 

17 NCAC 10 .0506 - Certification Requirements for County Appraisers RRC Objection 06/17/93 

17 NCAC 10 .0508 - Certification Requirements for Private Firm Appraisers RRC Objection 06/17/93 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



607 



RULES INVALIDATED BY JUDICIAL DECISION 



L his Section of the Register lists the recent decisions issued by the North Carolina Supreme Court, 
Court of Appeals, Superior Court (when available), and the Office of Administrative Hearings which 
invalidate a rule in the North Carolina Administrative Code. 



1 NCAC 5A .0010 - ADMINISTRATIVE PROCEDURES 

Thomas R. West, Administrative Law Judge with the Office of Administrative Hearings, declared two portions 
of Rule 1 NCAC 5A .0010 void as applied in Stauffer Information Systems, Petitioner v. The North Carolina 
Department of Community Colleges and Tlw North Carolina Department of Administration, Respondent and 
Tlie University of Southern California, Intervenor-Respondent (92 DOA 0666). 

10 NCAC 3H .0315(b) - NURSING HOME PATIENT OR RESIDENT RIGHTS 

Dolores O. Nesnow, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 10 
NCAC 3H .0315(b) void as applied in Barbara Jones, Petitioner v. North Carolina Department of Human 
Resources, Division of Facility Services, Licensure Section. Respondent (92 DHR 1192). 

15A NCAC 30 .0201(a)(1)(A) - STDS FOR SHELLFISH BOTTOM & WATER COLUMN LEASES 

Julian Mann III, Chief Administrative Law Judge with the Office of Administrative Hearings, declared Rule 
15A NCAC 30 .0201(a)(1)(A) void as applied in William R. Willis, Petitioner v. North Carolina Division of 
Marine Fisheries, Respondent (92 EHR 0820). 

15A NCAC 19A .0202(d)(10) - CONTROL MEASURES - HIV 

Brenda B. Becton, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 15A 
NCAC 19A .0202(d)( 10) void as applied in ACT-UP TRIANGLE (AIDS Coalition to Unleash Power Triangle), 
Steven Harris, and John Doe, Petitioners v. Commission for Health Services of the State of North Carolina, 
Ron Lcvine, as Assistant Secretary of Health and State Health Director for the Department of Environment, 
Health, and Natural Resources of the State of North Carolina, William Cobey, as Secretary of the Department 
of Environment , Health, and Natural Resources of the State of North Carolina. Dr. Rebecca Meriwether, as 
Chief Communicable Disease Control Section of the North Carolina Department of Environment, Health, and 
Natural Resources, Wayne Babbitt Jr. . as Chief of the H/V/STD Control Branch of the North Carolina 
Department of Environment, Health, and Natural Resources, Respondents (91 EHR 0818). 



60S 8:7 NORTH CAROLINA REGISTER July 1, 1993 



CONTESTED CASE DECISIONS 



I 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions 
along with an index to all recent contested cases decisions which are filed under North Carolina 's 
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available 
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698. 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



ADMINISTRATION 



LMS Express, Inc. v. Administration, Div of Purchase & Contract 92 DOA 0735 

Stauffer Information Systems v. Community Colleges & Administration 92 DOA 0803 

McLaurin Parking Co. v. Administration 92 DOA 1662 



Morgan 


06/04/93 






West 


06/10/93 


8:7 


NCR 613 


Morrison 


04/02/93 


8:3 


NCR 320 



ALCOHOLIC BEVERAGE CONTROL COMMISSION 



I 



Alcoholic Beverage Control Comm. v. Ann Oldham McDowell 
Curtis Ray Lynch v. Alcoholic Beverage Control Comm. 
Alcoholic Beverage Control Comm. v. Partnership, Phillip Owen Edward 
Alcoholic Beverage Control Comm. v. Gary Morgan Neugent 
Alcoholic Beverage Control Coinm. v. Kirby Ronald Eldridge 
Alcoholic Beverage Control Comm. v. Gloria Black McDuffie 
Alcoholic Beverage Control Comm. v. Larry Isaec Hailstock 
Johnnie L. Baker v. Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Comm. v. Aubrey Rudolph Wallace 
Alcoholic Beverage Control Comm. v. Homer Patrick Godwin Jr. 
Alcoholic Bev. Control Comm. v. Mild Sl Wild, Inc., Sheila Scholz 

COMMERCE 

Lester Moore v. Weatherization Assistance Program 
CRIME CONTROL AND PUBLIC SAEETY 



92 ABC 0260 


Morgan 


04/01/93 


92 ABC 0288 


Gray 


05/18/93 


92 ABC 0978 


Gray 


05/28/93 


92 ABC 1086 


Becton 


03/22/93 


92 ABC 1153 


Chess 


04/26/93 


92 ABC 1476 


West 


05/26/93 


92 ABC 1483 


ReiUy 


04/07/93 


92 ABC 1735 


Chess 


05/07/93 


93 ABC 0047 


Gray 


05/28/93 


93 ABC 0125 


Reilly 


05/13/93 


93 ABC 1475 


Ncsnow 


03/23/93 



93 COM 0105 Gray 



03/08/93 



George W. Pay lor v. Crime Victims Compensation Comm. 
Steven A. Barner v. Crime Victims Compensation Comm. 
Anthony L. Hart v. Victims Compensation Comm. 
Jennifer Ayers v. Crime Victims Compensation Comm. 
Janie L. Howard v. Crime Victims Compensation Comm. 
IsabeUe Hyman v. Crime Victims Compensation Comm. 
James G. Pellom v. Crime Control & Public Safety 
Moses H. Cone Mem Hosp v. Victims Compensation Comm. 
Phillip Edward Moore v. Crime Control & Public Safety 
John Willie Leach v. Crime Victims Compensation Comm. 
Nellie R. Mangum v. Crime Victims Compensation Comm. 
Constance Brown v. Crime Victims Compensation Comm. 

ENVIRONMENT. HEALTH. AND NATURAL RESOURCES 



91 CPS 1286 


Morgan 


04/27/93 


92 CPS 0453 


Nesnow 


06/01/93 


92 CPS 0937 


Chess 


03/01/93 


92 CPS 1195 


Reilly 


03/19/93 


92 CPS 1787 


Reilly 


03/26/93 


92 CPS 1807 


Morrison 


05/24/93 


93 CPS 0034 


Gray 


05/05/93 


93 CPS 0152 


Nesnow 


04/02/93 


93 CPS 0169 


Nesnow 


05/20/93 


93 CPS 0263 


Morrison 


05/20/93 


93 CPS 0303 


Morrison 


06/08/93 


93 CPS 0351 


Reilly 


05/24/93 



8:3 NCR 327 



♦ 



Charles L. Wilson v. Environment, Health, & Natural Resources 
William E. Finek v. Environment, Health, & Natural Resources 
Utley C. Stallings v. Environment, Health, & Natural Resources 
Safeway Removal, Inc. v. Environment, Health, & Natural Res. 
Elizabeth City/Pasquotank Cty Mun Airport Auth v. EHNR 
Service Oil Company v. Environment, Health, & Natural Resources 
City of Salisbury v. Environment, Health, & Natural Resources 
Willie M. Watford v. Hertford Gates District Health Department 
Standard Speciality Contractors, Inc. v. EHNR 
Angela Power, Albert Power v. Children's Special Health Sves. 
Mustafa E. Essa v. Environment, Health, & Natural Resources 
Rosella Brimage, Vanessa Pack v. Env. Health of Craven County 
O.C. Stafford/Larry Haney v. Montgomery Cty. Health Dept. 
Bobby Anderson v. Environment, Health, & Natural Resources 
Shell Bros. Dist., Inc. v. Environment, Health, & Natural Resources 



91 EHR 0664 


Morgan 


03/23/93 


92 EHR 0040 


Gray 


06/14/93 


92 EHR 0062 


Gray 


03/15/93 


92 EHR 0826 


West 


03/12/93 


92 EHR 1140 


Gray 


04/13/93 


92 EHR 1205 


Reilly 


05/27/93 


92 EHR 1472 


Morrison 


04/22/93 


92 EHR 1600 


Chess 


03/24/93 


92 EHR 1660 


Reilly 


05/21/93 


93 EHR 0008 


Becton 


03/24/93 


93 EHR 0146 


Gray 


03/29/93 


93 EHR 0206 


Ncsnow 


05/20/93 


93 EHR 0224 


Gray 


06/07/93 


93 EHR 0299 


Reilly 


06/07/93 


93 EHR 0308 


Becton 


05/18/93 



8:1 NCR 83 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



609 



CONTESTED CASE DECISIONS 



agency 



CASE 
NXJMBER 



AI.J 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



HUMAN RESOURCES 



O.C. Williams v. Human Resources 
Ronald Terry Brown v. Human Resources 
O.C. Williams v, Human Resources 
Michael L. Ray v. Human Resources 
Randy Chamhliss v. Human Resources 
Melvin White v Human Resources 
Jefferson D. Boylen v. Human Resources 
Jeffery D. Williams v. Human Resources 
Samuel E. Massenberg Jr. v. Human Resources 
William A. Dixon v. Human Resources 
Gregory L. Washington v. Human Resources 
Edwin Clarke v. Human Resources 
Dwayne Allen v. Human Resources 
Edwin Ivester v. Human Resources 
Tyrone Aiken v. Human Resources 
Edward E. Brandon v. Human Resources 
Darrell W. Russell v. Human Resources 
John Henry Byrd v. Human Resources 
MiJiellc D. Mobley v. Human Resources 
Robert E. Watson v. Human Resources 
Byron Christopher Williams v. Human Resources 
James W r . Bell v. Human Resources 
Eric Stanley Stokes v. Human Resources 
David Rollins v. Human Resources 
Lyndell Greene v. Human Resources 
Leroy Snuggs v. Human Resources 
James P. Miller III v. Human Resources 
Larry L. Crowderv. Human Resources 
Carlos Bernard Davis v. Human Resources 
Tcrranee Freeman v. Human Resources 
Timothy Brian Eller v. Human Resources 
Charles S. Ferrer v. Human Resources 
Ronald H. Lockley v. Human Resources 
Rene Thomas Rittenhouse v. Human Resources 
Thomas Edward Williamson v. Human Resources 
Roy Chester Robinson v. Human Resources 
William E. Ingram v. Human Resources 
Harold R. Pledger v. Human Resources 
Michael W. Bentley v . Human Resources 
Dale Robert Stuhre v. Human Resources 
Tommy Malone v. Human Resources 
James C. Dixon Jr. v. Human Resources 
Wallace M. Cooper v. Human Resources 
Jarvis N. Price v. Human Resources 
Thomas L. Yates v. Human Resources 
Robert E. Tarlton Sr. v. Human Resources 
Rodney Devard Clemons v. Human Resources 
James A. Coleman v. Human Resources 
Romeo F. Skapplev. Human Resources 
Jeffrey L. Garrett v. Human Resources 
William C. Hubbard v. Human Resources 
Edward Fitch v. Human Resources 
Brian C. Gilmore v. Human Resources 
Johnny W. Cooke v. Human Resources 
Isaac Maxwell v. Human Resources 
Donald J. Ray v. Human Resources 
McKmlev Clyburnv Human Resources 
Jeffery D. Williams v. Human Resources 
Bilk Smith v. Human Resources 
Anthony Curry v. Human Resources 
Larry W. Golden v. Human Resources 
William J. Carter v. Human Resources 



91 CSE 0036* : 


Morgan 


03/30/93 


91 CSE 0249 


Morgan 


05/17/93 


9 1 CSE 


1158* : 


Morgan 


03/30/93 


91 CSE 


1173 


Morgan 


05/17/93 


9 1 CSE 


11S7 


Morgan 


04/28/93 


91 CSE 


1192 


Morgan 


05/17/93 


9 1 CSE 


1217 


Morgan 


05/17/93 


91 CSE 


1231 


Morgan 


04/28/93 


91 CSE 


1249 


Morgan 


05/17/93 


91 CSE 


1277 


Morrison 


03/04/93 


92 CSE 0075 


Morgan 


04/01/93 


92 CSE 0129 


Morgan 


05/17/93 


92 CSE 0190 


Morgan 


03/31/93 


92 CSE 026S 


Nesnow 


03/30/93 


92 CSE 


1217 


Gray 


06/17/93 


92 CSE 


1237 


Gray 


04/16/93 


92 CSE 


1249 


Becton 


04/20/93 


92 CSE 


1250 


Reilly 


06/04/93 


92 CSE 


1256 


Nesnow 


04/15/93 


92 CSE 


1265 


Reilly 


05/06/93 


92 CSE 


1270 


Nesnow 


04/26/93 


92 CSE 


1311 


Nesnow 


05/10/93 


92 CSE 


13 16* 5 


Reilly 


03/25/93 


92 CSE 


1334 


Morrison 


05/06/93 


92 CSE 


1346 


Nesnow 


04/16/93 


92 CSE 


1360 


Morrison 


04/15/93 


92 CSE 


1361 


Gray 


04/16/93 


92 CSE 


1396 


Reilly 


04/15/93 


92 CSE 


1404 


Reilly 


04/15/93 


92 CSE 


1411 


Mann 


06/07/93 


92 CSE 


1414 


Reilly 


04/20/93 


92 CSE 


1416 


Mann 


04/15/93 


92 CSE 


141S 


Nesnow 


04/20/93 


92 CSE 


1421 


Nesnow 


04/20/93 


92 CSE 


1422 


Reilly 


04/20/93 


92 CSE 


1423 


Reilly 


04/15/93 


92 CSE 


1450 


Reilly 


04/15/93 


92 CSE 


1455 


Morrison 


05/20/93 


92 CSE 


1512 


Nesnow 


06/09/93 


92 CSE 


1510 


Reilly 


05/11/93 


92 CSE 


1520 


Mann 


05/07/93 


92 CSE 


1522 


Beelon 


05/11/93 


92 CSE 


1527 


Reilly 


05/11/93 


92 CSE 


1531 


Morrison 


05/12/93 


92 CSE 


1535 


Gray 


05/10/93 


92 CSE 


1536 


Gray 


05/17/93 


92 CSE 


1539 


Gray 


05/10/93 


92 CSE 


1540 


Reilly 


05/11/93 


92 CSE 


1545 


Gray 


04/26/93 


92 CSE 


1557 


G ray 


04/22/93 


92 CSE 


1562 


Mann 


05/12/93 


92 CSE 


1572 


Reilly 


05/11/93 


92 CSE 


1576 


Gray 


04/26/93 


92 CSE 


15S5 


Beeton 


05/11/93 


92 CSE 


1589 


Reilly 


04/26/93 


92 CSE 


1592 


Mann 


05/19/93 


92 CSE 


1623 


Morrison 


05/20/93 


92 CSE 


1626 


M. nin 


05/19/93 


92 CSE 


1629 


Reilly 


03/25/93 


92 CSE 


1631 


Reilly 


03/25/93 


92 CSE 


1633 


Reilly 


03/25/93 


92 CSE 


1637 


Nesnow 


05/19/93 



Consolidated cases. 



610 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



CONTESTED CASE DECISIONS 



I 



» 



AGENCY 



Eric Stanley Stokes v. Human Resources 

Patrick Floyd v. Human Resources 

Ira Alston Jr. v. Human Resources 

Marvin Holley v. Human Resources 

Michael Tywan Marsh v. Human Resources 

Leroy Jones v. Human Resources 

James E. Blakney v. Human Resources 

Barbara W. Catlett v. Human Resources 

Laurel Langford v. Human Resources 

Ida Diane Davis v. Human Resources 

Hatsuko Klein v. Human Resources 

Leon Barbee v. Human Resources 

James H. Hunt Jr. v. Div. of Medical Assistance 

Barbara Jones v. Human Resources 

Joyce P. Williams v. Human Resources 

Snoopy Day Care, Diane Hamby v. Child Day Care Licensing 

Cynthia Reed v. Human Resources 

Helm's Rest Home, Ron J. Schimpf/Edith H. Wilson v. Human Resources 

Jo Ann Kinsey v. NC Memorial Hospital Betty Hutton. Volunteer Svc. 

Amy Clara Williamson v. NC Mem Hosp Betty Hutton, Volunteer Svc. 

Betty Butler v. Human Resources 

Wayne Sanders and Brenda Sanders v. Human Resources 

Samuel Benson v. Office of Admin. Hearings for Medicaid 

INSURANCE 

Carolyn M. Hair v. St Employees Comprehensive Major Medical 

JUSTICE 

Colin Carlisle Mayers v. Sheriffs' Ed. &. Training Stds. Comm. 
Marilyn Jean Britt v. Criminal Justice Ed. &. Training Stds. Comm. 
Tim McCoy Deck v. Criminal Justice Ed. &. Training Stds. Comm. 
Richard Zander Frink v. Criminal Justice Ed. &. Traning Stds. Comm. 
Sherri Ferguson Revis v. Sheriffs' Ed. & Training Stds. Comm. 
Mark Thomas v. Sheriffs' Ed. &. Training Standards Commission 
N.C. Alarm Systems Licensing Bd. v. Vivian Darlene Gailher 
William B. Lipscomb v. Private Protective Services Board 

LABOR 



CASE 




DATE OF 


NUMBER 


AL.) 


DECISION 


92 CSE 


1652*' 


Reillv 


03/25/93 


92CSE 


1663 


Reilly 


05/20/93 


92 CSE 


1703 


Becton 


06/16/93 


92 CSE 


1713 


Mann 


06/08/93 


92 CSE 


1716 


Gray 


06/17/93 


92 CSE 


1718 


Gray 


06/17/93 


92 CSE 


1779 


Ncsnow 


05/13/93 


92 DCS 0577 


West 


03/15/93 


92 DCS 


1181 


Gray 


05/04/93 


92 DCS 


1200 


Gray 


03/29/93 


92 DCS 


1271 


Reilly 


05/05/93 


92 DHR 065S 


Morrison 


04/30/93 


92 DHR 


1145 


Becton 


05/13/93 


92 DHR 


1192 


Nesnow 


04/02/93 


92 DHR 


1275 


Gray 


03/15/93 


92 DHR 


1320 


Morgan 


05/21/93 


92 DHR 


1329 


Chess 


05/10/93 


92 DHR 


1604 


Reilly 


05/10/93 


92 DHR 


1612 


Chess 


03/08/93 


92 DHR 


1613 


Chess 


03/08/93 


92 DHR 


1614 


Chess 


03/09/93 


92 DHR 


1699 


Reilly 


06/07/93 


93 DHR 0010 


Becton 


03/11/93 



PUBLISHED DECISION 
REGISTER CITATION 



92 INS 1464 



Chess 



03/10/93 



92 DOJ 0761 


Morrison 


05/10/93 


92 DOJ 1088 


Morrison 


03/16/93 


92 DOJ 1367 


Chess 


04/01/93 


92 DOJ 1465 


Nesnow 


05/28/93 


92 DOJ 1756 


Gray 


03/23/93 


93 DOJ 0151 


West 


04/21/93 


93 DOJ 0202 


Chess 


05/10/93 


93 DOJ 0458 


Morrison 


06/01/93 



8:5 NCR 441 



4 NCR 392 

5 NCR 443 
3 NCR 313 



8:7 NCR 632 



Greensboro Golf Center, Inc. v. Labor 
Ronald Dennis Hunt v. Labor 

MORTUARY SCIENCE 

Board of Mortuary Science v. Triangle Funeral Chapel. Ine 
STATE PERSONNEL 



92 DOL 0204 
92 DOL 1319 



92 BMS 1169 



Nesnow 04/15/93 
Morgan 06/17/93 



Reilly 



04/29/93 



8:4 NCR 396 



I 



Frances K. Pate v. Transportation 

Lawrence D. Wilkie, Jerry R. Evans, Jules R. Haneart, 

James H. Johnson, James D. Fishel v. Justice 
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Haneart, 

James H. Johnson, James D. Fishel v. Justice 
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Haneart, 

James H. Johnson, James D. Fishel v. Justice 
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Haneart, 

James H. Johnson, James D. Fishel v. Justice 
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Haneart, 

James H. Johnson, James D. Fishel v. Justice 
Bernic B. Kellly v. Correction 
Brenda G. Mitchell v. Correction 
Clayton Brewer v. North Carolina State University 
Sherman Daye v. Transportation 
Donnic M. White v. Correction 

Gregory Samuel Parker v. Environment, Health, & Natural Resources 
Renee E. Shepherd v. Winston-Salem State University 



S8 OSP 0340 


Morrison 


05/03/93 


90 OSP 1064** 


Mann 


05/04/93 


90 OSP 1065** 


Mann 


05/04/93 


90 OSP 1066* 4 


Mann 


05/04/93 


90 OSP 1067** 


Mann 


05/04/93 


90 OSP 1068** 


Mann 


05/04/93 


91 OSP 0344 


Morrison 


05/27/93 


91 OSP 0625 


West 


03/08/93 


91 OSP 0941 


West 


04/02/93 


91 OSP 0951 


West 


05/07/93 


91 OSP 1236 


Morgan 


04/05/93 


91 OSP 1344* 5 


Chess 


05/20/93 


91 OSP 1391 


Morgan 


04/2S/93 



8:1 NCR 75 
8:3 NCR 306 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



611 



CONTESTED CASE DECISIONS 



u;kn< > 



Eva Dockery v. Human Resources 

Lee P Crosby v. Michael Kelly, William Meyer and EHR 

Gregory Samuel Parker v. Environment, Health. & Natural Resources. 

Willie Granville Bailey v. Winston-Salem State University 

Julia Spinks v. Environment, Health. & Natural Resources 

James B. Price v. Transportation 

1. Cary Naillingv. UNC-CH 

Deborah Barber v. Correction 

Lave me B. Hill v. Transportation 

Jimmy D. Wilkins v. Transportation 

Sarah W, Brill v. Human Resources, C.A. Dillon School, CPS 

Herman James Goldstein v. UNC-Chapel Hill el al. 

Glinda C. Smith v. Wildlife Resources Commission 

Cindy G. Bartlett v. Correction 

William Kenneth Smith Jr. v. Broughton Hospital (Human Resources) 

Larry O. Nobles v. Human Resources 

Willie Thomas Hope v. Transportation 

Suzanne Ransley Hill v. Environment, Health, & Nat. Res. 

Herman James Goldstein v. UNC-Chapel Hill et al. 

John B. Sauls v. Wake County Health Department 

Gilbert Jaeger v. Wake County Alcoholism Treatment Center 

Joseph Henry Bishop v. Environment, Health. & Natural Res. 

Willie L. Hudson v. Correction 

Brenda K. Campbell v. Employment Security Commission 

Christie L. Guthrie v. Environment, Health, & Natural Resources 

James B. Price v. Transportation 

Betl> Bradsherv. UNC-CH 

Jainal Al Bakkat-Morns v. Glenn Sexton 1DSS1 

Brenda Kay Barnes v. Human Resources 

Larry G. Riddle v. Correction, Division of Prisons 

Stevie E. Dunn v. Polk Youth Center 

Buford D. Vieregge Jr. v. N.C. State University, University Dining 

Karen Canter v. Appalachian State University 

Barbara A. Johnson v. Human Resources 

Carrie P. Smith v. County o( Stanly 

George W. Allen v. Human Resources, Correction, Agri & EHNR 

William G. Fisher v. St Bd oi Ed. Albermarle City Schools & Bd of Ed 

Grace Jean Washington v. Caswell Center 

Clifton E. Simmons v. Correction 

Willie L. James v. Caswell Center 

Irving S. Rodgers v. C.A. Dillon. Division of Youth Services 

Jerry D. Doss Sr. v. Correction 

Debbie Renee Robinson v. Correction 



CASE 




DATE OE PUBLISHED DECISION 


NUMBER 


ALj 


DECISION REGISTER CITATION 


92 OSP 0010 


Chess 


05/03/93 


92 OSP 0056 


Gray 


06/07/93 


92 OSP 0188*' 


Chess 


05/20/93 


92 OSP 0285 


Morrison 


03/10/93 


92 OSP 0313 


Becton 


04/12/93 8:4 NCR 382 


92 OSP 0375 


Gray 


04/13/93 


92 OSP 0394 


Beaton 


04/20/93 


92 OSP 0396 


Chess 


03/04/93 


92 OSP 043 1* 1 


West 


03/08/93 


92 OSP 0432* 1 


West 


03/08/93 


92 OSP 0455 


West 


05/26/93 8:6 NCR 484 


92 OSP 0634 


Morrison 


05/04/93 


92 OSP 0653 


Morrison 


03/12/93 


92 OSP 0671 


Morgan 


06/08/93 


92 OSP 0684 


Becton 


05/10/93 


92 OSP 0732 


Mann 


04/23/93 


92 OSP 0947 


Morgan 


03/23/93 


92 OSP 0992 


Reilly 


03/18/93 8:2 NCR 224 


92 OSP 1047 


Morrison 


05/04/93 


92 OSP 1142 


Reilly 


03/08/93 8:1 NCR 88 


92 OSP 1204 


Reilly 


05/10/93 


92 OSP 1243 


Reilly 


03/05/93 


92 OSP 1468 


Becton 


05/26/93 


92 OSP 1505 


Morrison 


03/17/93 


92 OSP 1555 


Becton 


05/31/93 


92 OSP 1657 


Mann 


03/19/93 


92 OSP 1733 


Becton 


03/30/93 


92 OSP 1741 


Becton 


03/24/93 


92 OSP 176S 


Morrison 


03/17/93 


92 OSP 1774 


Gray 


04/26/93 


92 OSP 1789 


Becton 


04/19/93 


92 OSP 1796 


Morrison 


05/27/93 


93 OSP 0079 


Reilly 


06/15/93 


93 OSP 0103 


Morrison 


03/17/93 


93 OSP 0109 


Becton 


04/01/93 


93 OSP 0111 


Reilly 


04/16/93 


93 OSP 0134 


Becton 


04/20/93 


93 OSP 0153 


Morgan 


06/03/93 


93 OSP 0159 


Morrison 


04/21/93 


93 OSP 0171 


Morgan 


05/27/93 


93 OSP 0177 


West 


04/21/93 


93 OSP 0287 


Gray 


05/17/93 


93 OSP 0383 


Nesnow 


06/07/93 



I 



♦ 



si \ll IR1 \slR| R 



Herman D. Brooks v. Bd of Trustees Teachers" &. St Emp Ret Sys 
Henrietta Sandlin v. Teachers' &. State Emp Comp Major Medical Plan 
Mary Alyce Carmichael v. Bd/Trustees/Teachers' & St Emp Ret Sys 



91 DST 0566 


Gray 


04 13/93 


92 DST 0305 


Morgan 


04/12/93 


92 DST 1506 


Chess 


04/08/93 



TRANSPORTATION 

Yates Construction Co.. Inc. v. Transportation 

UNIVERSITY OF NORTH CAROLINA HOSPITALS 

Jacqueline Florence v. UNC Hospitals 



92 DOT 1800 Morgan 03/25/93 



93 UNC 0355 



Bcvton 



06 '16/93 



I 



612 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF WAKE 



IN THE OFFICE OF 

ADMINISTRATTVE HEARINGS 

92 DOA 0803 



STAUFFER INFORMATION SYSTEMS. 
Petitioner, 



v. 



THE NORTH CAROLINA DEPARTMENT OF 
COMMUNITY COLLEGES AND THE NORTH 
CAROLINA DEPARTMENT OF ADMINISTRATION. 

Respondent, 



and 



THE UNIVERSITY OF SOUTHERN CALIFORNIA, 

Intervenor-Respondent. 



RECOMMENDED DECISION 



STATEMENT OF THE CASE 

On April 10. 1992, Respondents issued Request for Proposal 201 157 for Applications Development 
Software for the North Carolina Department of Community Colleges ("the RFP"). (Exhibit 1). Stauffer 
submitted its Technical and Cost Proposals in response to the RFP to the Department of Administration (DOA) 
on May 1 1, 1992. (Exhibits 4 and 5). Technical and Cost Proposals were also submitted by the University 
of Southern California (USC). (Exhibits 2 and 3). Respondents determined that the proposal from Stauffer 
and the proposal from USC each met the technical requirements of the RFP. A technical proposal from a 
third bidder. System Builder Technologies (SBT), was found to be technically nonconforming. (Exhibit 8). 
On May 19, 1992, the Department of Community Colleges (DCC) determined that the low bid was submitted 
by USC. DCC determined that the USC bid was for $175,200 and that the Stauffer bid was for $192,650. 
(Exhibit 9). 

Stauffer objected to the method of evaluating the proposals in a May 22, 1992 facsimile to King 
Prather, Assistant Purchasing Administrator for the Department of Community Colleges. (Exhibit 26). 
Stauffer contended that under correct and proper evaluation methods it was the low bidder. DOA responded 
to Stauffer's objection on May 28, 1992. (Exhibit 29). DOA admitted that a mistake had been made in 
evaluating the bids and reevaluated the proposals. Under the second and final DOA evaluation, the cost of 
the USC proposal was $1 13,200, and the cost of the Stauffer proposal was $1 14,100. (Id.). 

Stauffer contended that the final evaluation method used by Respondents erroneously included certain 
costs in the Stauffer proposal that resulted in the higher total cost being assigned to the Stauffer proposal than 
to the USC proposal. Moreover, Stauffer contended that Respondents incorrectly determined that the USC 
proposal met the technical requirements of the RFP. Stauffer again protested, and a meeting was held 
between Stauffer and officials of DOA, including State Purchasing Officer William J. Stuckey, on June 15, 
1992. (Tr.. Vol. 3. pp. 386-387). 

After this meeting resulted in no change in Respondent's position, Stauffer filed a verified petition 
and motion for stay on June 15, 1992. (Office of Administrative Hearings Case Number 92 DOA 0666). 
A hearing was held before Administrative Law Judge Thomas R. West on June 16, 1992, after which Judge 
West entered a temporary restraining order staying the administrative action on the grounds that Stauffer had 
demonstrated a likelihood of success on the merits and that Stauffer would be irreparably harmed if the stay 
were not entered. On June 29, 1992, a hearing was held on the motion to dismiss of the Respondents and 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



613 



CONTESTED CASE DECISIONS 



of the Intervenor USC. Judge West dismissed the petition on the grounds that, although there had been a final 
agency decision when the petition was filed, that decision had been subsequently retracted by Stuckey and 
there was no longer a final agency decision that would support a contested case petition. 

Pursuant to Judge West's Order dismissing the petition, the parties had until July 15, 1992, to 
negotiate their dispute. Stauffer attempted to contact Stuckey by telephone, by letter, and by facsimile to 
continue negotiations, but Stuckey refused to have any contact with any official or representative of Stauffer. 
(Tr., Vol. 3, pp. 389-391). Stuckey issued his final decision on July 14, 1992. and upheld the decision of 
Respondents. (Exhibit 37; Tr., Vol. 3, p. 391). Stauffer then filed the verified petition that commenced the 
present contested case. 

This case is daunting if viewed from the standpoint of deciding which software product is superior, 
TOADS or BLACKSMITH. That is not what this case is about. 

This is a case about: 

1 . the law governing purchases by the State of North Carolina; 

2. the meaning of the RFP at issue; 

3. the understanding DCC had of the two bids at the time it accepted USC's bid; 

4. the phrase, "their package" as it appears numerous times in the RFP; 

5. a vague RFP. the terms of which cannot be understood in isolation, but must be understood 
in light of the RFP as a whole and the treatment by DCC of the same vague terms in separate bid packages; 
and 

6. the credibility of witnesses and the analysis of conflicting evidence. 

This is a case about whether TOADS, the same kind of product as BLACKSMITH, yet for proprietary 
reasons different from BLACKSMITH, met the requirements of the RFP and whether BLACKSMITH met 
the requirements of the RFP at a lower cost than TOADS. 

Decisions made by the Executive Branch which become the subject of contested cases are analyzed 
pursuant to the standards set forth in G.S. 150B-23. A determination about whether a decision violates one 
of those five tests cannot be based upon evidence that the decisionmaker did not have, unless it is an update 
of that evidence. 

The primary decisionmaker in this case was Mr. Ijames. This case is primarily about what was in 
his mind at the time the decision at issue was made. The case is not about what the expert witnesses say about 
the competing bids and software, except to the degree their testimony tends to support or detract from 
evidence of what was in Mr. Ijames' mind at the time the decision was made to accept USC's bid. 

APPEARANCES 

The Petitioner Stauffer was represented by M. Keith Kapp, Esq. and Richard N. Cook, Esq., of 
Maupin, Taylor, Ellis & Adams, P. A., Raleigh, North Carolina. 

The Respondent DOA was represented by Teresa L. White, Assistant Attorney General, appearing 
on behalf of Attorney General Lacy H. Thornburg and, subsequently. Attorney General Michael F. Easley. 

The Respondent DCC was represented by David M. Parker, Assistant Attorney General, and Anne 
J. Brown, Associate Attorney General, appearing on behalf of Attorney General Lacy H. Thornburg and, 
subsequently. Attorney General Michael F. Easley. 



614 8:7 NORTH CAROLINA REGISTER July 1, 1993 



CONTESTED CASE DECISIONS 



The Intervenor-Respondent USC was represented by Cynthia L. Wittmer, Esq. and Stephen D. 
Coggins, Esq., of Parker, Poe, Adams & Bernstein, Raleigh, North Carolina. 

ISSUES 

Did the USC bid submitted in response to DOA's Request for Proposal # 201 157 ("the RFP") 
conform substantially with the terms of that RFP, within the meaning of N.C.G.S. § 143-52? 

Did USC submit the lowest and best bid most advantageous to the State in response to DOA's 
Request for Proposal # 201 157, within the meaning of N.C.G.S. § 143-52? 

BURDEN OF PROOF 

The Petitioner bears the burden of proving by the greater weight of the substantial evidence that 
USC's bid did not conform substantially with the terms of the RFP and that USC did not submit the lowest 
and best bid in response to the RFP. 

OFFICIAL NOTICE 

Official notice is taken of N.C.G.S. § 143-52, 1 N.C.A.C. 5A .0010, and 1 N.C.A.C. IB .0700. 
Official notice is also taken of the contents of Volume 1 of the Federal Express Service Guide dated 
September, 1992, for shipments within the U.S. (also Exhibit P-P). 

WITNESSES 

The following persons were called by the Petitioner and testified: 

1 . Henry Unger 

2. Charles Stauffer 

3. Sasen Hober 

4. Dianne Bozler 

5. Nathan King Prather 

6. Sasen Hober (on Rebuttal) 

The following person was called by the Respondent DCC and testified: 

1 . Steve Ijames 

The following persons were called by the Respondent DOA and testified: 

1 . William Stuckey 

2. Nathan King Prather 

The following person was called jointly by the Respondent DOA and the Respondent DCC and 

testified: 

1 . Robin Burk 

The following persons were called by the Intervenor-Respondent USC and testified: 

1 . Dianne Bozler 

2. Alan Mehta 

3. Dr. Edgar Sibley 

4. David Jesus Amescua 

5. E. Richard Strand 



8:7 NORTH CAROLINA REGISTER July 1, 1993 615 



CONTESTED CASE DECISIONS 



EXHIBITS 

The exhibits were omitted from this publication. A copy of the exhibits can be obtained by contacting 
this office. 

FINDINGS OF FACT 

The Administrative Law Judge finds the following to be the facts, based upon consideration of the 
substantial evidence admitted; personal observation of the demeanor of the witnesses; and an analysis, through 
personal observation and analysis of contradictions and inconsistencies in the evidence, of the credibility of 
witnesses: 

1 . Steve Ijames is employed by DCC as Director of Information Services, a position he has held 
for eight years. (Tr., Vol. 7, p. 941.) Mr. Ijames holds a Bachelor of Science degree in mathematics, a 
Masters in Science in mathematics and a Masters in Science in computer science. (Tr., Vol. 7, p. 943.) 

2. DCC's Information Services Section is divided into four units. (Tr., Vol. 7, p. 944.) One 
such unit, the Institutional Information Processing Systems section ("UPS"), develops computer applications 
for use by the state's community colleges in performing administrative computing functions. (Tr.. Vol. 7, 
pp. 944-945; 947-949.) Phil Shepard, who reports to Mr. Ijames. is in charge of UPS. (Tr., Vol. 7. p. 945.) 

3. The computer system maintained by Mr. Ijames' section, like most computer systems, is 
organized in layers. At the base of the system is the hardware--the computer itself--which, in the case of 
DCC, is a PRIME computer. (Tr., Vol. 7. p. 949.) The next layer is the operating software, which operates 
to manage the resources of the hardware and make them available to other programs that run on the hardware. 
(Tr.. Vol. VII, pp. 303, 356-357.) On top of the operating software are a series of other software packages, 
such as database management or file management packages. These packages allow the user to structure and 
access information. Also at this level are language development tools, the software which translates 
programmers' directives into binary code for execution by the computer. (Tr., Vol. VII, pp. 303-304.) 
Among the software operating at this level at DCC is the PRIME INFORMATION software, including the 
structured query language of PRIME INFORMATION, known as INFORM. (Tr., Vol. VII, p. 955; Tr., Vol. 
VII, p. 358.) 

4. Applications development software is a fourth generation computer language tool. It offers 
applications developers an easier, faster, more automated, and more uniform means of designing, developing, 
testing, implementing and maintaining software application systems. (Tr.. Vol. 7. p. 946.) An applications 
development system makes use of the underlying levels of software but automates the logic involved in 
invoking the database management system or the hardware management capabilities of the operating system. 
(Tr.. Vol. VII, pp. 305-306.) 

5. Developers of applications development software must make numerous proprietary choices 
regarding the degree to which their systems rely on features of the underlying, operating software. Market 
and design considerations may dictate different choices concerning the degree to which they wish to override 
the capabilities of the underlying software and replace it with their own. or instead to invoke the capabilities 
of the underlying software in a more automated way. (Tr.. Vol. VII, pp. 306-308. 403-404.) To some degree 
or another, however, any applications development software relies on the lower levels of software to 
accomplish its functions, and interacts with those lower levels. (Tr.. Vol. VII, pp. 275. 306.) 

6. For several years prior to issuance of the RFP, Mr. Ijames had known he needed to find a 
way to improve the efficiency with which his applications developers could develop, install, and maintain 
applications. Without an applications development system. DCC programmers were required to spend 
substantial time writing detailed computer code to meet DCC's applications needs. (Tr., Vol. 7, p. 947.) 

7. In 1990, Mr. Ijames and Mr. Shepard began to research fourth generation products for 
possible acquisition by DCC to use on its PRIME system. (Tr., Vol. 7, p. 950.) They identified four 



616 8:7 NORTH CAROLINA REGISTER July 1, 1993 



I 



CONTESTED CASE DECISIONS 



potential vendors whose products might be suitable: Stauffer, USC, System Builder Technology, Inc. 
("System Builder"), and Infocell. (Tr., Vol. 7, p. 951.) Stauffer uses the trade name "BLACKSMITH" to 
describe its product line; USC uses the trade name "TOADS," an acronym for Total On-Line Applications 
Development System, for its product. (Tr.. Vol. IX, p. 633.) 

8. During this investigative period, Stauffer, USC and Infocell all demonstrated their products 
to Mr. Ijames and his staff. System Builder did not. (Tr., Vol. 7, p. 952.) Mr. Ijames had requested the 
demonstrations in an effort to ascertain whether an applications development tool would be helpful to DCC. 
(Tr., Vol. 7, pp. 952-953.) The applications development tool purchased had to be compatible with PRIME 
INFORMATION, the database management software used by DCC. (Tr.. Vol. 7, pp. 955-956.) 

9. Based upon the demonstrations, Mr. Ijames determined that several products could meet 
DCC's needs, including TOADS and BLACKSMITH. (Tr., Vol. 7, p. 955.) The UPS team then developed 
specifications for an applications development tool, which Mr. Shepard compiled into one document and Mr. 
Ijames refined. (Tr., Vol. 7. pp. 957-59.) 

10. Nathan King Prather is a purchasing administrator employed by DOA's Office of Purchase 
and Contract ("P&C"). He generally oversees purchases by state agencies of microcomputers, minicomputers 
and related peripheral products at a cost in excess often thousand dollars. (Tr., Vol. VI, pp. 153-154.) 

11. In April, 1992, Mr. Prather issued Request for Proposals # 201 157 (Exhibit 1) on behalf of 
DCC and DOA. (Tr., Vol. VI, p. 158.) Pages 6-1 1 of that document constitute the technical specifications 
developed by Mr. Ijames and his staff; pages 1-5 include standard terms and conditions prepared by P&C. 
(Tr., Vol. VI, pp. 154-155.) In response to the RFP, Mr. Prather received three proposals: from Stauffer, 
USC, and System Builder. (Tr., Vol. VI, p. 159.) 

12. In evaluating the responses to the RFP, P&C employed a two-step process. Under this 
process, the technical proposals were evaluated first. If it was determined that a bidder's proposal met the 
technical requirements of the RFP, the bidder's cost proposal was then evaluated. (Tr., Vol. VI, p. 160.) 

13. The RFP required bidders to submit one original and two copies of separately sealed cost and 
technical proposals, and one set of "user manuals" for each piece of equipment to be bid. (Exhibit 1. p. 2, 
n.7.) The RFP also required bids to be accompanied "by all information (including technical literature and 
specifications) necessary and pertinent to understand and evaluate" a bid proposal. (Exhibit 1, p. 6.) 

14. As defined by the foregoing provisions of the RFP, a "bid" constitutes the sealed technical 
and cost proposals together with all user manuals. User manuals include such technical documentation as 
instruction manuals, tutorials, and release notes. Promotional literature or articles do not constitute part of 
the bid. 

15. Dianne Bozler, Director of USC Software Systems, was responsible for preparing USC's 
proposal in response to the RFP. (Tr., Vol. IX, pp. 631, 643.) 

16. Alan Mehta, an employee of USC who is supervised by Bozler, packed the box containing 
USC's bid documents for shipment from USC to DOA. (Tr., Vol. IX, pp. 643-644, 789.) He included three 
copies of USC's technical proposal and three copies of USC's cost proposal, placing each of the six proposals 
in separate envelopes. In addition, he included those documents entered into the record of this case as 
Exhibits D-l and E. C-10, C-ll.l, C-11.2, C-12, C-4, C-5, C-6.2, C-7, C-8 and C-9. (Tr.. Vol. IX, pp. 
791-794.) Mr. Mehta placed the documents into the box entered in this case as Exhibit P-E-3, added some 
packing material and signature pages, and shipped the box to DOA by Federal Express. (Tr.. Vol. IX, pp. 
794-797; Tr., Vol. 3, pp. 326-327.) 

17. At the time the box containing USC's bid was shipped to DOA in May, 1992, USC used a 
Federal Express "Powership" scale to weigh packages shipped via Federal Express. (Tr., Vol. XI, p. 911.) 
The scale was calibrated so that if the weight of a package was at or up to seven ounces above a given pound 



8:7 NORTH CAROLINA REGISTER July 1, 1993 617 



CONTESTED CASE DECISIONS 



weight, the scale would record the weight at that pound weight on the shipping label. If the package exceeded 
any pound weight by eight ounces or more, the scale would round the package weight up to the next whole 
pound on the shipping label. (Tr., Vol. XI, p. 913.) When USC shipped its package to DOA, the shipping 
label produced by the Federal Express scale located at USC recorded the weight of the box at fifteen pounds. 
(Tr., Vol. 3, p. 359.) 

18. During the course of the hearing, the Petitioner conducted weighing experiments intended to 
challenge USC's assertions as to the contents of the box containing USC's bid at the time it was shipped to 
DOA. (Tr., Vol. 3, pp. 335-350.) In response, USC conducted its own weighing experiments intended to 
support its testimony as to the contents of the box. (Tr., Vol. IX, pp. 698-709.) The weighing experiments 
conducted by the parties were not of scientific reliability, and do not rise to the level of substantial evidence. 

19. USC's bid was comprised of USC's technical proposal (Exhibit P-E-l) and cost proposal 
(Exhibit P-E-2), and the following exhibits which constitute user manuals: 

Exhibit P-E Box set including P-D-2, P-D-3. and IR-C 

Exhibit P-D-l TOADS Developers Guide 

Exhibit P-D-2 TOADS Programmers Guide 

Exhibit IR-C TOADS System Administrator Guide 

Exhibit P-D-3 Index to System Administrator Guide 

Exhibit P-C- 10 TOADS Tutorial 

Exhibit P-C-4 TOADS Release Note 9.2.RO 

Exhibit P-C-5 TOADS Release Note 9.1.RO 

Exhibit P-C-6.2 TOADS Release Note 9.0. RO 

Exhibit P-C-7 TOADS Release Note 8.2.RO 

Exhibit P-C-8 TOADS Release Note 8.0. R2 

Exhibit P-C-9 TOADS Release Note 7.5 

In addition, the USC bid was accompanied by the following items of descriptive literature which did not 
constitute part of the bid: 

Exhibit P-C- 11.1 TOADS Promotional packet 

Exhibit P-C- 1 1.2 TOADS Promotional packet 

Exhibit C-12 TOADS Promotional article 

20. Mr. Prather opened the bids received in response to the RFP on May 1 1 , 1992. He examined 
each shipment and verified that the technical proposals did not include cost information and that the bidders 
had submitted supporting technical documentation. (Tr., Vol. VI, p. 159.) Mr. Prather then sent the 
technical proposals and documentation from each bidder to DCC, keeping a single copy of each technical 
proposal and all sealed cost proposals in his office. (Tr., Vol. VI, pp. 159-160.) 

21. Mr. Ijames and Mr. Shepard evaluated the technical proposals sent to DCC by Mr. Prather 
to determine whether the respective vendors had submitted proposals which substantially met the RFP's 
specifications. (Tr., Vol. 7, pp. 962-963.) Mr. Ijames had the ultimate responsibility to decide whether a 
proposal substantially complied with the RFP. (Tr., Vol. 7, p. 967.) 

22. In evaluating each proposal, Mr. Ijames and Mr. Shepard used an evaluation sheet which 
listed each of the RFP's requirements and contained space for written comments about a proposal's compliance 
with each such requirement. Both men completed such sheets for the USC and Stauffer proposals. (Tr., Vol. 
7, pp. 963, 966; Exhibits 15, 17.) After each had evaluated a proposal individually, they then met to review 
their notes and the proposal together. (Tr.. Vol. 7, pp. 968-969.) 

23. Mr. Shepard evaluated the System Builder proposal before Mr. Ijames and concluded that 
the proposal did not meet the technical requirements of the RFP for several reasons. He informed Mr. Ijames 
that the System Builder proposal was nonconforming, and Mr. Ijames agreed. Therefore, Mr. Ijames did not 



618 8:7 NORTH CAROLINA REGISTER July 1, 1993 



CONTESTED CASE DECISIONS 



complete an evaluation sheet for the System Builder bid. (Tr., Vol. 7, p. 964.) The System Builder proposal 
was rejected because it relied upon the underlying software to meet the recovery requirements of the RFP. 
In a memo dated May 15, 1992, from Shepard to Jane Goodwin, Director of Departmental Services for DCC, 
Shepard found that SBT failed to meet the recovery requirement. 

"They do not provide recovery features within their package but rely on the recovery features 
that are residing on the different hardware/software platforms." 

(Exhibit 8). Ijames agreed with this analysis at the time it was made. (Testimony of Stephen Ijames, Tr., 
Vol. 7. p. 904; Vol. VI, p. 102). 

DCC did not have the optional recovery features on its underlying PRIME INFORMATION 
software. (Tr., Vol. VI, pp. 119, 126; Tr., Vol. XIV, pp. 1594-1595.) 

24. DCC's analysis of the System Builder proposal is the key to this case. Stauffer contends that 
DCC rejected the System Builder bid because it did not have the recovery features within its own proprietary 
package. Thus, restrictive interpretation of "their package" is warranted. Respondents argue that the phrase 
"their package" used in the RFP should not be read so restrictively and that an application development 
software package complies with the RFP if the proprietary package itself contains features required by the 
RFP or accomplishes certain functions by facilitating the underlying software. 

Stauffer argues that DCC intended a restrictive interpretation of "their package" in the RFP 
when, in Shepard's memo, it rejected System Builder because its package relied on the recovery features 
residing on the different hardware/software platforms. Stauffer correctly argues that no mention was made, 
at the time the memo was written, that DCC did not have the optional recovery features on its underlying 
PRIME INFORMATION software. Stauffer argues that DCC and DOA are bootstrapping the decision to 
choose TOADS with Ijames' testimony that DCC did not have the optional recovery features. 

Stauffer's arguments have the attraction of being simple and ascribing importance to the 
exactness of language, to wit: DCC did not mention that its underlying software lacked the optional recovery 
features, so it must have meant exactly what it said in Shepard's memo and Ijames was merely bootstrapping 
(or lying) at the hearing. 

Shepard's memo is capable of another interpretation, however. Shepard and Ijames knew the 
capabilities of DCC's PRIME INFORMATION software and knew it lacked the optional recovery features. 
When System Builder's bid did not provide the features within its own package, the result was that the features 
were not provided at all. The attraction of this analysis is that it is consistent with knowledge that Ijames and 
Shepard had and makes DCC's analysis of the three proposals consistent rather than the analysis of System 
Builder mutually inconsistent with its analysis of the USC proposal. 

The Shepard memo must be construed in light of the knowledge that Shepard and Ijames had 
at the time it was written. Rejection of the System Builder bid is consistent with acceptance of the USC bid. 
The phrase "their package" used repeatedly in the RFP does not mean the proprietary package of the vendor 
standing alone. 

25. If a particular bidder decided, for proprietary reasons, to accomplish a certain function by 
relying in part on the underlying software, Ijames treated that function as part of the bidder's package and 
considered the bid compliant, as long as the function could be performed as required by the RFP. ( See 
discussion of delayed indexing and null field delimiting below.) The RFP itself specifies that a bidder's 
software is to be "evaluated on how well their package operates in the PRIME INFORMATION 
environment ." in conjunction with the underlying PRIME hardware and PRIME INFORMATION software 
used by DCC. (Exhibit 1, p. 7, 1 1 [emphasis added]; see generally . Exhibit 1, pp. 6-7.) 

26. Mr. Shepard informed DCC Purchasing Officer Jane Goodwin, who in turn notified Mr. 
Prather. that DCC had found the technical proposals of both USC and Stauffer conforming. (Tr.,Vol. VI. 



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CONTESTED CASE DECISIONS 



pp. 160-161; Exhibit 8.) Mr. Prather then released the cost proposals of these two bidders to DCC. (Tr.,Vol. 
VI, p. 161.) 

27. Based on his evaluation of the cost proposals, Mr. Ijames determined that USC had submitted 
the lowest and best proposal, at a cost of $175,200 compared to a cost of $192,650 for Stauffer's proposal. 
(Tr., Vol. 7, pp. 969, 1052.) Mr. Shepard communicated that determination to Ms. Goodwin, who again 
notified Mr. Prather of DCC's determination. (Tr., Vol. VI, pp. 161-162.) Mr. Prather reviewed DCC's cost 
analysis, determined that some costs beyond the initial one-year contract term had been improperly included, 
and adjusted the cost analysis. (Tr.,Vol. VI, pp. 162-164, 168-169; Tr..Vol. VII, p. 206.) USC, however, 
remained the low bidder with a bid of $113,200. (Tr.. Vol. VI, p. 178; Exhibit 22.) In evaluating the cost 
of Stauffer's proposal, DCC and DOA included the cost of Stauffer's BLACKSMITH Security system at 
$12,000, and the cost of Stauffer's Developer II and System Administrator training classes at $6,400 and 
$3,000, respectively. (Tr., Vol. 7, pp. 1048, 1050; Exhibit 5, pp. 4, 6; Tr.. Vol. VI, pp. 180-181.) DOA 
awarded the contract to USC on May 21, 1992. (Tr., Vol. VI, p. 170; Tr.. Vol. VII, pp. 201-202.) 

28. Stauffer questioned the award of the contract to USC by letter to Mr. Prather dated May 22, 
1992. (Tr., Vol. VI, p. 175; Exhibit 26.) As a result, Mr. Prather met with Mr. Ijames, Mr. Shepard, and 
Ms. Goodwin to again review the analysis of the proposals. (Tr., Vol. VI, pp. 175-176.) Stauffer's cost 
proposal was again revised, but its bid remained higher than USC's at a cost of $1 14,100. (Tr., Vol. VI, pp. 
176-180.) Mr. Prather explained his analysis in a letter to Stauffer dated May 28, 1992. (Exhibit 29.) 

29. USC first received notification of the contract award on June 1, 1992. (Tr., Vol. IX, p. 644.) 
Subsequently. Stauffer protested the contract award to the State's Purchasing Officer. William Stuckey. (Tr.. 
Vol. 7, pp. 925, 928, 933.) 

30. During the course of the hearing, Ms. Robin Burk was qualified and testified for DCC and 
DOA as an expert in commercial software, writing and reviewing government RFPs, and responding to REP's 
for government contract bidding. (Tr., Vol. VII, pp. 258-259, 301.) Dr. Edgar Sibley was qualified and 
testified for USC as an expert in commercial software, including applications development software, database 
design, system administration, security, and the teaching of those topics; drafting, reviewing, and evaluating 
government RFPs; and writing and evaluating responses and bids to government RFPs. (Tr., Vol. XII, pp. 
1045-1046, 1069.) Mr. Henry Unger was qualified and testified as an expert in commercial software, requests 
for proposals, and responses to requests for proposals in government contract bidding for computer software. 
(Tr., Vol. 1, pp. 38, 84.) 

31. The Petitioner disputes DCC's determination that USC's proposal complied with the RFP's 
technical requirements in the areas of security, user interface support, indexing, and tracking of changes. In 
addition, the Petitioner contends that the costs of its automated security system and of two of its training 
classes were improperly included in evaluating the Stauffer proposal, and that it in fact presented the lowest 
bid. 

I USC'S COMPLIANCE WITH THE TECHNICAL REQUIREMENTS OF THE RFP . 

A. User Interface Su pport . 

32. The RFP included the following relevant requirements regarding user interface support: 

Comprehensive and easy-to-use interface features are a key ingredient of an Applications Development 
Software package. The required features that we are interested in are: ... (7) Bottom screen 
prompting, . . . [and] (9) Dumb terminal windowing. . . . 

(Exhibit 1, p. 9.) "Ease of use" is a subjective factor which can depend upon many considerations, such as 
frequency of use, what the feature is being compared to, and the needs of the user, as acknowledged by 
Stauffer's witnesses. (Tr., Vol. 2, p. 180; Tr., Vol. 6, p. 784.) The RFP did not preclude writing some code 
(or programming) to accomplish user interface support. (Exhibit I, p. 9.) 



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33. "User interface support," as used in the RFP, referred to those facilities supported by the 
applications development tool to enable the applications developer to build interface methods between the 
computer and the user. (Tr., Vol. 7, p. 972). On his written evaluation form, Mr. Ijames found that USC's 
proposal supported all eleven of the required user interface features, noting that TOADS "uses callable 
routines for some of the interface features." (Exhibit 17, p. 4.) 

(1) Bottom screen prompting . 

34. Bottom screen prompting is a method of communicating instructions or "prompts" to, and 
receiving input from, the computer user at the bottom of the computer terminal screen. 

35. USC's technical proposal included the following response to the bottom screen prompting 
requirement: 

TOADS incorporates easy-to-use features for both users and programmers/developers. ... (7) Bottom 
screen prompting can be achieved through the use of a custom written universal subroutine. . . . 
(Exhibit 2, p. 9.) 

36. Mr. Ijames understood USC's proposal to mean that DCC could write one simple TOADS 
subroutine, and thereafter use that subroutine universally in the TOADS environment to effect bottom screen 
prompting. (Tr., Vol. 7, pp. 974-975.) Mr. Ijames defined a universal subroutine as a subroutine that is 
written and then made universally available through the applications development tool to all applications 
developers. (Tr., Vol. 7, p. 974.) Stauffer's President, Charles Stauffer, acknowledged that one purpose of 
a subroutine is to collect programming instructions in one place so they can be used repeatedly without the 
necessity of physically re-programming the instructions each time. (Tr., Vol. 6, p. 783.) 

37. Mr. Ijames reasonably found that USC's proposal substantially complied with the REP's 
requirement for bottom screen prompting. Mr. Ijames also reasonably determined that USC's proposal 
substantially satisfied the REP's ease of use requirement for bottom screen prompting, since it provided for 
a universally-available, callable subroutine which eliminated the necessity of re-programming the instructions 
for bottom screen prompting each time the feature was desired. (Tr., Vol. 7, pp. 974-975.) 

38. The testimony of two of the expert witnesses, Ms. Robin Burk and Dr. Edgar Sibley, 
confirmed that bottom screen prompting can be easily accomplished through use of TOADS' universal 
subroutines. (Tr., Vol. VII, pp. 341-342; Tr., Vol. XII, pp. 1082-1084, 1214-1217.) Ms. Bozler and Dr. 
Sibley further explained how the user manuals submitted as part of USC's proposal show how a universal 
subroutine for bottom screen prompting can be written once, and TOADS will then, if desired, apply it 
automatically to all fields, thereby minimizing the involvement of the programmer. (Tr.. Vol. IX, pp. 664- 
667; Tr., Vol. XII, pp. 1216-1217.) 

(2) Dumb terminal windowing . 

39. "Windowing" is a form of user interface where a rectangular sub-area of the screen is used 
to display information to or receive input from a user. The rectangular area or "window" is typically 
delineated from the rest of the screen by use of a line or by reverse video features (contrasting light and dark 
areas). (Tr.. Vol. 7, p. 978; Tr., Vol. 6, p. 792; Tr.. Vol. XII, pp. 1223-1224.) 

40. Dumb terminal windowing is the ability to create a window or the effect of a window on a 
"dumb" terminal-a terminal which has little or no intelligence of its own and may not in and of itself have 
the capacity to support windowing. (Tr., Vol. 7, p. 978.) 

41. USC responded to the REP's requirement for dumb terminal windowing as follows: 

Dumb terminal windowing is available dependent upon the limits of the terminal in question. Certain 
characters are required for TOADS to draw line graphics. If the terminal does not support line 



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graphics, TOADS graphics will appear in reverse video. (Exhibit 2, p. 9.) 

42. Mr. Ijames understood I SC's proposal to mean that TOADS supported dumb terminal 
windowing. In the remainder of the response, he understood that USC was simply explaining how it 
accomplishes that function. (Tr., Vol. 7, p. 979.) 

43. Mr. Stauffer acknowledged that the means by which both TOADS and BLACKSMITH 
accomplish dumb terminal windowing are dependent upon the limits of the terminal in question. If the 
terminal does not support line graphics, both packages use reverse video features to delineate the window; if 
the terminal does not support reverse video, both packages use a string of symbols to create the effect of a 
line. (Tr.. Vol. 6, pp. 794-798.) Thus both products accomplish dumb terminal windowing in the same 
fashion, as indicated by the proposals. 

44. Mr. Ijames reasonably found that USC's proposal substantially complied with the 
requirements of the RFP for dumb terminal windowing. The testimony of Ms. Burk and Dr. Sibley, with 
references to the TOADS user manuals, confirmed Mr. Ijames' conclusion. (Tr., Vol. VII, pp. 344-347; Tr., 
Vol. VIII, pp. 474-479. 542-546; Tr., Vol. XII, pp. 1083-1084, 1225-1228.) 

B. Change Tracking . 

45. The RFP included the following requirement for tracking of changes to software applications: 

This feature is considered a required part of an Applications Development Software package. 
Vendors must provide complete information on the availability of this feature in their package. 
(Exhibit 1, p. 9.) 

46. Tracking of changes to applications development software involves recording any 
modifications to the system in order to create a history of the evolution of any application of the system. (Tr.. 
Vol. 7. p. 981.) Mr. Ijames included this requirement because DCC wanted to have the ability to maintain 
a record of changes made to the software, including systems and applications files. (Tr., Vol. VI, pp. 69, 
71.) 

47. USC's proposal included the following information on change tracking: 

As an add-on product to TOADS, a software control and archiving system (SCATS) will be available 
by October 1. 1992. This product, currently under beta testing, will enable developers to install 
applications into a production environment and maintain a history on the installation of the 
application. It will also maintain an archive of all developed applications, project by project, for as 
long as required. . . . (Exhibit 2, p. 10.) 

48. In stating that SCATS would be available by October 1, 1992, USC failed to respond to the 
RFP's change tracking requirement. 

49. Mr. Ijames, however, determined that TOADS met the change tracking requirement without 
relying upon the "SCATS" product described by USC in its Technical Proposal. (Tr., Vol. 7, p. 1091.) On 
his written evaluation form, Mr. Ijames noted that SCATS would not be available until October of 1992. 
(Exhibit 17, p. 5.) He also noted, however, that the TOADS audit tracking feature, described in the user 
manuals which were part of USC's bid (Exhibit IR-C, Ch. 7. pp. 5-6, and App. B. p. iii; Exhibit P-D-l . App. 
A, p. i), could be used to track files such as the master file (PROCESS. MASTER) prior to the availability 
of SCATS. (Tr., Vol. 7. pp. 984-986.) Mr. Ijames understood from demonstrations of the TOADS product 
prior to issuance of the RFP that the audit trailing feature could be turned on both applications files and 
systems files, as confirmed by the TOADS user manuals. (Tr., Vol. 7. pp. 985-986, 988-989: Tr.. Vol. IX. 
pp. 695-697; Tr., Vol. XII. pp. 1 100. 1 102.) 

50. Mr. Ijames was also aware, as described in the TOADS' user manuals (Exhibit P-D-2, App. 



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$ 



» 



$ 



A, p. i), that programmers could track changes in TOADS through use of the comment section in the header 
or template of the TOADS universal subroutines, where a programmer can record when and why 
modifications to applications are made and describe such changes. (Tr., Vol. 7, pp. 990-991, 1091.) 

5 1 . Mr. Ijames reasonably concluded that USC's proposal substantially met the RFP's requirement 
for tracking of changes. The testimony of both Ms. Burk and Dr. Sibley supported his conclusion. (Tr., Vol. 
VII, pp. 380-385; Tr., Vol. XII, pp. 1099-1103.) 

C. Indexing . 

52. The RFP included the following relevant requirements for indexing: 

Vendors are to provide complete information on the indexing capabilities that are found in their 
Applications Development Software package. The following indexing capabilities are required: . . 
. (6) Delayed indexing, (7) INFORM level support and (8) Delimiters (Null fields, date, browse 
retrieval, data telescoping). (Exhibit 1, p. 9.) 

The RFP did not specify how these indexing features were to be accomplished. 

53. DCC required vendors to describe indexing features available with their package because 
indexing is the method by which records in a database system are stored and subsequently accessed or 
retrieved. Indexing is a necessary tool in building database management systems. (Tr., Vol. 7, pp. 995-996; 
Tr., Vol. VII, pp. 349-351.) "Alternate key" is an equivalent term for "index." (Tr., Vol. 7, p. 1003; Tr., 
Vol. VII, p. 350; Tr., Vol. XII, pp. 1237-1238.) 

54. USC's proposal made the following statement regarding indexing: 
TOADS indexing supports the following types of alternate keys to files: 

1) B-tree access (including partial key lookup); 

2) regular cross reference inverted lists; 

3) PRIME INFORMATION'S alternate keys; 

4) range edits with low and high values defined per item; 

5) memory files for efficient table lookup without a read to disk; 

6) intersecting alternate keys which allow users to build any combination of alternate 
keys for rapid retrieval of records. 

7) the ability to scroll through alternate key selections— forward, backward, marking 
items for inclusion—or exclusion—in a select list, the ability to browse through 
each record marked for inclusion in the browse, and the option of printing 
directly from the selected list and, finally. 

8) INFORM level is supported through the TCL support of TOADS. 

On each alternate key retrieval, TOADS displays the total number of records in the database meeting 
the selection criteria and displays 10 record summaries at a time. As users page through the 
summaries, they mark records to be displayed in full detail at a later time. When ready, they then 
can browse through the marked summary records for details. (Exhibit 2, pp. 10-1 1.) 

(1) Delayed indexing . 



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55. Delayed indexing is the ability to delay updating the computer system's indexes at the time 
a record is stored; it is a method by which the computer's processing resources needed to update the indexes 
are reserved until a later time. (Tr., Vol. 7, pp. 996-997; Tr.. Vol. VII, pp. 349-351.) Mr. Ijames testified 
that the reference to delayed indexing in the RFP referred to the concept of being able to delay indexing, 
without implying that any particular method to accomplish such delayed indexing was required. (Tr., Vol. 
7. pp. 1053-1054.) 

56. As explained in the TOADS user manuals. TOADS provides for the automatic updating of 
indexes. (Exhibit P-C-8, tH 13, 14; Tr., Vol. VIII, p. 497.) However, if a programmer chooses not to 
organize the data in such a fashion, then TOADS allows someone with proper permission to "drop down to 
level three" and access PRIME INFORMATION'S alternate keys, with its ability to delay the updating of 
those alternate keys or indexes. (Tr., Vol. VIII, pp. 497-498.) It is commonly understood by PRIME users 
that PRIME INFORMATION'S alternate keys offer delayed indexing. (Tr., Vol. VII, p. 416; Tr., Vol. IX, 
p. 673.) 

57. USC stated in its proposal that TOADS "supports. . .PRIME INFORMATION'S alternate keys. 
..." Mr. Ijames understood that this support would enable DCC programmers to delay indexing through 
access to the delayed indexing feature of PRIME INFORMATION'S alternate keys, in compliance with the 
RFP. (Tr., Vol. 7, pp. 998-999, 1000, 1097; Tr., Vol. VI, p. 109.) Because TOADS supports, or allows 
access to, PRIME INFORMATION'S alternate keys with its delayed indexing feature, delayed indexing can 
then be accomplished within TOADS; the feature therefore becomes part of the TOADS package. (Tr., Vol. 
XII. p. 1244; Tr., Vol. 6. pp. 803-804; Tr., Vol. VII, pp. 306-308; Tr., Vol. XIII, pp. 1352-1353.) 

58. Mr. Ijames reasonably determined that USC's proposal substantially complied with the RFP's 
requirement for delayed indexing through TOADS' support of PRIME INFORMATION'S alternate keys, since 
support of PRIME INFORMATION'S alternate keys provided access to PRIME INFORMATION'S delayed 
indexing feature. 

59. Both Ms. Burk and Dr. Sibley explained in detail, by reference to the user manuals submitted 
as part of USC's bid, how delayed indexing is accomplished in TOADS in conjunction with PRIME 
INFORMATION'S alternate keys, confirming the reasonableness of Mr. Ijames' conclusion. (Tr., Vol. VIII. 
pp. 497-499; Tr., Vol. XII. pp. 1084-1085, 1237-1242, 1258, 1262-1263; Tr., Vol. XIII, pp. 1352-1353.) 
Further, Ms. Bozler and Dr. Sibley also referred to the TOADS user manuals to explain how delayed indexing 
could be accomplished in all of TOADS' indexing systems, even without reliance upon PRIME 
INFORMATION'S alternate keys. (Tr., Vol. IX, pp. 739-740, 753-755, 765; Tr., Vol. XII, pp. 1240-1243, 
1256.) 

(2) INFORM level support . 

60. USC responded to the RFP requirement for INFORM level support as follows: 

8) INFORM level is supported through the TCL support of TOADS. (Exhibit 2, p. 11.) 

Mr. Ijames understood this assertion to mean that INFORM level is supported. (Tr., Vol. 7, p. 1001.) 

61 . INFORM is a set of commands available in the PRIME INFORMATION software which can 
be used interactively by a user to construct a query against a database, in contrast to using a preconstructed 
program. (Tr.. Vol. VII. pp. 363-364.) 

62. As described in more detail in the user manuals, TOADS gives the applications programmer 
the option to allow an application user to go beyond preconstructed programs and access some of the 
commands of the underlying PRIME INFORMATION software. (Tr.. Vol. VII. p. 364.) Among such 
underlying commands are the INFORM commands which can be used to withdraw information from the 
database. (Tr., Vol. VII, p. 364.) 



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63. Mr. Ijames reasonably concluded that USC's proposal substantially met the RFP's requirement 
for INFORM level support. His conclusion was supported by the testimony of Ms. Burk and Dr. Sibley. 
(Tr., Vol. VII, pp. 363-364; Tr., Vol. XII, pp. 1087-1088.) By reference to the user manuals submitted as 
part of USC's bid, Dr. Sibley explained in detail three different ways by which TOADS provides INFORM 
support by allowing data retrieval with the use of INFORM verbs. (Tr., Vol. XII, pp. 1087-1088; Tr., Vol. 
XIII, pp. 1367-1368, 1372.) 

(3) Delimiters . 

64. Delimiters are mechanisms for restricting the number or kinds of records retrieved from a 
database. (Tr., Vol. 7, p. 1001 .) Hundreds of delimiters or delimiting functions are possible. (Tr., Vol. IX, 
p. 678.) The RFP included four examples of delimiters or delimiting functions: null fields, date, browse 
retrieval, and data telescoping. (Exhibit 1, p. 9.) Although the four examples of delimiters set out in the RFP 
were an illustrative rather than an exhaustive list of the required delimiters, at least those four delimiters or 
delimiting functions were required. 

65. USC did not specifically respond to each example in its technical proposal. (Tr., Vol. IX, 
p. 678.) Rather, USC described the general delimiting capabilities of TOADS in its technical proposal; 
examples of specific delimiters can be found in the user manuals submitted with its bid. 

(a) Null field delimiting. 

66. A null field is a field that is empty and has no data in it. (Tr., Vol. 7, p. 1003; Tr., Vol. 
VII, p. 366.) Null field delimiting is the ability to restrict access to or search a database based upon null or 
empty fields. (Tr., Vol. XII, p. 1089.) 

67. USC's proposal stated that TOADS supports PRIME INFORMATION'S alternate keys, and 
PRIME INFORMATION'S alternate keys provide null field support. (Tr., Vol. 7, p. 1003.) Mr. Ijames, 
because of his experience with PRIME INFORMATION, knew that PRIME INFORMATION'S alternate keys 
provide null field support. (Tr., Vol. 7, p. 1003.) Because TOADS allows access to PRIME 
INFORMATION'S null field delimiting feature, it is available or useable within TOADS; the feature therefore 
becomes part of the TOADS package. 

68. Mr. Ijames reasonably concluded that USC's proposal substantially met the RFP's requirement 
for null field delimiting by allowing access to the null field delimiting feature of PRIME INFORMATION'S 
alternate keys. 

69. The testimony of both Ms. Burk and Dr. Sibley supported Mr. Ijames' conclusion. (Tr., Vol. 
VII, p. 366-368; Tr., Vol. XII, p. 1092.) Moreover, as explained by both Ms. Burk and Dr. Sibley, the 
TOADS user manuals submitted with USC's bid further show that searches can be made in TOADS of "blank" 
fields. (Tr., Vol. VII, pp. 372-373; Tr., Vol. XII, pp. 1089-1092; Exhibit P-C-6.2.) Since blank fields are 
the same as null fields, searching for blank fields in TOADS also accomplishes null field delimiting. (Tr., 
Vol. VIII, pp. 509, 550; Tr., Vol. XII, p. 1092; Tr., Vol. XIII, pp. 1364-1365.) 

(b) Date delimiting. 

70. Date delimiting refers to the ability to access or retrieve data based on date. (Tr., Vol. VII, 
p. 368; Tr., Vol. XII, pp. 1089-1090.) 

71. Mr. Ijames found that USC's proposal met the RFP's requirements for date delimiting through 
the "XCLUDE" keys routine described in the user manuals. (Exhibit P-D-l, Ch. 3; Tr., Vol. 7, p. 1005.) 
Mr. Ijames concluded that the XCLUDE keys routine can be utilized to delimit a database in any way a 
designer desires, including by date. (Tr., Vol. 7, pp. 1005-1006.) Mr. Ijames had learned of the XCLUDE 
keys function during demonstrations of TOADS by USC prior to issuance of the RFP, and therefore knew to 
look for this function in the TOADS manuals in evaluating USC's bid. (Tr., Vol. 7, p. 1006.) 



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72. Mr. Ijames reasonably determined that USC's proposal provided for date delimiting through 
the XCLUDE key routine, in substantial compliance with the RFP, as confirmed by the testimony of both Ms. 
Burk and Dr. Sibley. (Tr., Vol. VII, pp. 368-369; Tr., Vol. XII, p. 1090. By reference to the TOADS user 
manuals, Ms. Bozler and Dr. Sibley further explained that, in TOADS, an alternate key or index can be 
placed on any data field, and thus can then be used to delimit even without use of XCLUDE. (Tr., Vol. IX, 
p. 686; Tr.. Vol. XIII. pp. 1364-1366.) Appendix E of the TOADS Developers Guide (Exhibit P-D-l, App. 
E, p. xxvii) specifically illustrates the use of birth date as a delimiter. (Tr., Vol. IX, pp. 686-687; Tr., Vol. 
XII. p. 1090; Tr., Vol. XIII, pp. 1365-1366.) 

(c) Browse retrieval. 

73. The Petitioner conceded at hearing that USC's proposal provided for browse retrieval 
delimiting, as required by the RPP. (Tr., Vol. 6, p. 815.) 

(d) Data telescoping. 

74. Mr. Ijames testified that "data telescoping" in the RPP referred to the ability to take a data 
set and to successively narrow or refine the data within it to compute upon. (Tr.. Vol. 7, p. 1007.) 

75. Mr. Ijames determined that USC's proposal provided for data telescoping by its description 
of TOADS' ability; 

to scroll through alternate key selections — forward, backward, marking items for inclusion - 
- or exclusion -- in a select list, the ability to browse through each record marked for 
inclusion in the browse, and the option of printing directly from the selected list .... (Tr., 
Vol. 7, pp. 1007-1008, Exhibit 2, p. 11.) 

This language from USC's proposal indicated to Mr. Ijames that a subset or "select list" of the full database 
could be created in TOADS and. once created, the subset could then be further refined by additional data 
retrieval from the select list rather than from the full database. (Tr., Vol. 7, pp. 1008-1010, 1059-1060. 
1089.) 

76. Stauffer's Vice-President for Sales, Sasen Hober. defined data telescoping as the ability to 
change levels of detail or shift perspectives within a data set. (Tr.. Vol. 3, p. 375; Tr., Vol. 4, p. 492.) 
"Data telescoping", however, is not an industry standard term, and neither Ms. Burk nor Dr. Sibley could 
define it. (Tr.. Vol. VII. p. 374; Tr., Vol. XII, p. 1093.) 

77. Ms. Bozler was not certain what was meant by the phrase "data telescoping" when USC 
responded to the RFP, and did not expressly use the term in USC's proposal, although she attempted to 
describe the function she believed was being requested. (Tr.. Vol. IX, p. 688.) Mr. Ijames was not 
concerned whether a proposal repeated the words of the RFP. but was interested in whether the function could 
be performed. (Tr., Vol. 7. p. 1009.) 

78. Mr. Ijames reasonably concluded that USC's proposal provided for data telescoping, as he 
intended the term to be understood, in substantial compliance with the RFP. His conclusion is supported by 
the testimony of Ms. Burk and Dr. Sibley, who described in more detail, by reference to the TOADS user 
manuals, how the function of data telescoping, as defined by Mr. Ijames. is accomplished in TOADS through 
the creation of select lists. (Tr., Vol. VII, pp. 374-375, 378; Tr., Vol. XII, pp. 1096-1097.) They further 
testified that the TOADS user manuals demonstrate that TOADS also accomplishes the function of data 
telescoping as defined by Ms. Hober. (Tr., Vol. VII, pp. 375-378; Tr., Vol. IX, pp. 690-692: Tr.. Vol. XII. 
pp. 1097-1099; Exhibit P-D-l. pp. 1-5, 3-1 to 3-6, App. E.. p. xxvi.) 

D. Security . 

79. The RFP included the following requirements for security: 



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Security against unauthorized access, the capability to set security and the ease of setting security are 
all highly important issues. The following security features are required: (1) User level security, (2) 
Account level profile, (3) Process level security, (4) File level security, (5) Record level security, (6) 
Field level (view blocking), (7) Pseudo TCL access, (8) Pseudo TCL level security, (9) INFORM 
field security and (10) INFORM command security. Vendors must indicate the security features 
available through use of their package. 
(Exhibit 1, p. 8.) 

The RFP did not preclude writing some code to achieve security in the ten required areas. 

80. Stauffer does not contend that USC's proposal failed to provide for security in the first eight 
of the ten enumerated areas. (Tr., Vol. 2, pp. 164-165.) Stauffer does contend, however, that USC's 
proposal did not meet the RFP's requirements for security in the last two of the ten areas, and that USC's 
security system is not easy to use. 

81. In response to the RFP's security requirements, USC offered its security system, "TASS": 

Security within TOADS is extensive without being complex and has been able to meet the 
diverse needs of our customers. The TOADS Application Security System (TASS) controls 
and limits access to system functions based upon a user's privileges .... TASS can be used 
with TOADS, or with programs unrelated to TOADS. . . (Exhibit 2, p. 5.) 

USC's proposal then described how it met each of the ten required security features. (Exhibit 2., pp. 5-7.) 
With regard to the last two features, USC's proposal stated: 

9) INFORM field security and 

10) INFORM command security have been controlled by TOADS through our TOADS 
Report Writer component. . . . (Exhibit 2, p. 6.) 

82. USC's proposal expressly addressed each of the ten enumerated security areas, and explained 
that INFORM field and command security are handled through the TOADS Report Writer. (Exhibit 2, pp. 
5-7.) Mr. Ijames understood that some coding could be required with TASS, depending upon the particular 
security features being implemented, but anticipated that DCC would need to write some code with any 
security system in order to meet its particular needs. (Tr.. Vol. VI, pp. 11-13, 1 10, 1 13-1 14.) Mr Ijames 
also understood that ease of setting security in TOADS' TASS is facilitated by pre-existing menus generic to 
TASS that guide the developer through the process of setting security, and by access to the TOADS universal 
subroutines to customize certain security features. (Tr., Vol. VI, pp. 110-111, 113-114, 125-126.) 

83. Mr. Ijames reasonably concluded that USC's proposal substantially met the RFP's security 
requirements in the ten enumerated areas. His conclusion in the areas of INFORM field and command 
security was supported by the testimony of Dr. Sibley, who explained in detail, by reference to the TOADS 
user manuals, how those security features are accomplished by the TOADS Report Writer. (Tr., Vol. XII, 
pp. 1207-121 l;Tr., Vol. XIII, pp. 1281-1286,1356-1358.) The TOADS Report Writer simulates the report 
writer function of INFORM and passes requests to INFORM; since these requests are returned to the user 
through TOADS, they are therefore subject to TOADS' security capabilities. (Tr., Vol. XII, p. 1208; Tr., 
Vol. XIII, pp. 1285-1286, 1356-1357.) 

84. Mr. Ijames reasonably concluded that USC's proposal substantially met the ease of use 
requirement of the RFP. TASS is a virtually fully automated system, but allows the programmer to override 
the automated features for further customization. (Tr., Vol. VI, pp. 1 13-1 14; Tr., Vol. VII, p. 571 .) At the 
most detailed security levels, where automation is less practical due to the particular needs of each user, TASS 
provides a pre-existing structure or skeleton to be completed by adding the specific coding needed at an 
indicated location. (Tr., Vol. VI, pp. 23-29, 113-1 14, 125-126; Tr., Vol. VII, pp. 319-323, 388; Tr., Vol. 
XIII, pp. 1375-1379.) Mr. Ijames' conclusion that TASS met the ease of use requirement of the RFP was 



8:7 NORTH CAROLINA REGISTER July 1, 1993 627 



CONTESTED CASE DECISIONS 



supported by the testimony of Ms. Burk and Dr. Sibley, who described in detail how TASS accomplishes or 
facilitates setting security at each level with its automated features, skeletal structure, and use of universal 
subroutines. (Tr., Vol. VII, pp. 316-329; Tr., Vol. XII, pp. 1075-1082; Tr., Vol. XIII, pp. 1375-1379.) 

E. Summary . 

85. DCC reasonably found USC's proposal in substantial compliance with the technical 
requirements of the RFP. Stauffer failed to prove, by the greater weight of the evidence, that USC's bid did 
not conform substantially with the terms of the RFP. 

II EVALUATION OF THE COST PROPOSALS 

A. Training 

86. In the paragraph entitled "training" the RFP provided: 

"Vendors must respond to the following alternative methods to meet our need for 
comprehensive training... ." (Exhibit 1, p. 10) 

The bid specification for "training" is stated vaguely, particularly in comparison to other bid 
specifications such as User Interface Support and Indexing. The "training" section of the RFP did not define 
what constitutes "comprehensive training." Nowhere in the bid specification for "training" is there stated a 
requirement that training be provided in security, database design and system administrator topics. However, 
a reading of the RFP as a whole confirms the importance of security, database design, and system 
administration, thereby indicating the necessity of training in these areas. ( E.g. , Exhibit 1, p. 1, \% 1-3; p. 
2, fl 1-3; p. 8, ^1 4.) Moreover, training in these areas was necessary to be able to secure the information 
maintained by the system, to learn how to design databases within the methodology of the system, and to be 
able to install and manage the system at the state office and college levels. (Tr., Vol. 7. pp. 1029-1034.) 

87. Comprehensive training was a requirement of the RFP, and reasonably encompassed training 
on the security features of the particular software being proposed, on the database design methodology 
incorporated in the software, and on administration of the software on DCC's computing systems. (Tr., Vol. 
7, pp. 1029-1031. 1033-1034.) 

88. Stauffer responded to the RFP's requirement for training in its technical proposal, where it 
listed five available courses under a description of its "comprehensive education program." (Exhibit 4, p. 26.) 
Each of these courses was described clearly and in detail in Stauffer's Education Information Package, 
attached as an exhibit to its technical proposal. (Exhibit 4, pp. 155-168.) In its cost proposal, Stauffer 
recommended purchase of both the Developer II and System Administrator classes, for a total charge of 
$9,400. (Exhibit 5, p. 6.) 

89. In the description of its Developer II course in its Education Information Package. Stauffer 
included the topics "security" and "normalized database design." (Exhibit 4, p. 158.) Likewise, the 
objectives for the Developer II course included: "design systems with knowledge of BLACKSMITH logic 
and normalized file structure," and "implement BLACKSMITH security." (Exhibit 4, p. 159.) In its 
Education Information Package, Stauffer described its System Administrator class as a course "for the data 
processing professional who will be maintaining BLACKSMITH and will oversee its use on the system." 
(Exhibit 4, p. 161.) There was no mention of database design, security, or system administration in the 
course description for Stauffer's Developer I class in its Education Information Package. (Exhibit 4. p. 157.) 

90. Mr. Ijames relied upon the descriptions of Stauffer's courses in its technical proposal, and 
particularly in the Education Information Package, to determine that security, database design, and system 
administration were taught in Stauffer's Developer II and System Administration classes, and not in its 
Developer I class. (Tr., Vol. 7, pp. 1037-1038.) 



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91. Mr. Ijames reasonably concluded from reading Stauffer's descriptions of its courses in its 
Education Information Package that inclusion of the Developer II class in the cost of Stauffer's proposal was 
necessary for training in security and database design, and that inclusion of the System Administrator class 
was necessary for training in system administration. (Tr., Vol. 7, p. 1039; Tr., Vol. VII, pp. 403-404.) 

92. Mr. Ijames' conclusion that comprehensive training necessarily included training in security, 
database design and system administration, and his conclusion that Stauffer's Developer II and System 
Administrator classes were necessary to provide such comprehensive training, were supported by the testimony 
of Ms. Burk and Dr. Sibley. (Tr., Vol. VII, pp. 394-400, 405; Tr., Vol. XII, pp. 1122-1124, 1126-1128.) 

B. Security 

93. Stauffer responded to the security requirements of the RFP by the statement in its technical 
proposal that the required security features were available through the use of "BLACKSMITH Security." 
(Exhibit 4, p. 14.) "BLACKSMITH Security" in Stauffer's technical proposal refers to the BLACKSMITH 
security module described at pages 138-141 of that proposal. Stauffer's cost proposal stated that the 
BLACKSMITH security module cost $12,000 for a state-wide license. (Exhibit 5, p. 4.) 

94. Mr. Ijames reasonably concluded, upon reading Stauffer's technical proposal, that its proposal 
to satisfy the REP's requirements for security with "BLACKSMITH Security" referred to Stauffer's automated 
security module, "BLACKSMITH Security." (Tr., Vol. 7, pp. 1020-1021, 1027-1028.) Stauffer's expert 
witness, Henry Unger, testified in his deposition that he interpreted Stauffer's technical proposal as referring 
to Stauffer's automated security module. (Tr., Vol. 2, pp. 154-155.) 

95. Stauffer's cost proposal contained a statement that "All required security features can be coded 
using the Application Generator's subroutine exits." (Exhibit 5, p. 5.) Stauffer's Application Generator is 
described in the brochure beginning at page 128 of its technical proposal. (Exhibit 4, pp. 128-133.) Security 
is not listed as a feature of the Application Generator in that brochure, nor is it readily identifiable as a feature 
of the Application Generator module, particularly in contrast with the description of the BLACKSMITH 
Security module in the brochure appearing at page 138 of Stauffer's technical proposal. 

96. Mr. Ijames reasonably concluded from reading Stauffer's technical and cost proposals that 
the security features required by the REP were provided by the automated BLACKSMITH Security module, 
and that the cost of that module was $12,000. The testimony of Ms. Burk and Dr. Sibley supported that 
conclusion. (Tr., Vol. VII, pp. 385-386, 392-393; Tr., Vol. XII, p. 1 121.) Moreover, neither Mr. Ijames, 
Ms. Burk nor Dr. Sibley, despite multiple readings of Stauffer's user manuals, could determine how security 
could be implemented in all of the required areas, or be implemented easily, without purchase of the 
automated security module. (Tr., Vol. 7, p. 1028; Tr., Vol. VI, pp. 10, 12, 16-17, 113; Tr., Vol. VII, pp. 
389-392; Tr., Vol. VIII, pp. 560-563; Tr., Vol. XII, pp. 1 108-1 1 10, 1119, 1 142, 1 144.) 

C. Summary . 

97. DCC and DOA reasonably determined that the cost of USC's proposal was $1 13,200, and 
that the cost of Stauffer's proposal was $114,100. Stauffer failed to prove, by the greater weight of the 
substantial evidence, that USC did not submit the lowest and best bid in response to the REP. 

CONCLUSIONS OF LAW 

Based upon the substantial evidence presented in this case and the foregoing Findings of Fact, the 
undersigned Administrative Law Judge makes the following Conclusions of Law: 

1 . A department of the State of North Carolina is bound by the terms of the REP and has the 

authority to accept only those offers that comply with the technical requirements of the REP. 



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2. A department of the State of North Carolina accepts a bidder's offer by awarding the contract 
to the bidder. 

3. The technical compliance of a bid submitted in response to the RFP depends on the language 
in the bid. not the actual capacity of the bidder to perform the requirements of the RFP. Although it is not 
necessary for a bid to use the precise language of the RFP, nevertheless the bid must reasonably "respond" 
to the specific requirements of the RFP. 

4. The Secretary of the Department of Administration has the authority to reverse a decision of 
the State Purchasing Officer and can, upon the proper facts, award a contract to a protesting bidder. The 
Secretary is not limited to ordering a rebid. 1 NCAC 5D .0401; N.C. Gen. Stat. 143-52. 

5. Because the Secretary of the Department of Administration has the authority to award a 
contract to a protesting bidder, an Administrative Law Judge has the authority to make such a recommenda- 
tion. 

6. It would be proper for the Secretary of the Department of Administration to award a contract 
to a protesting bidder if the protesting bidder establishes that it is the only bidder to have submitted a 
technically conforming bid in response to an RFP. 

7. Although an agency or department of the State of North Carolina cannot be compelled to 
purchase a particular item, if that agency or department has decided to purchase the item, it can only do so 
in accordance with North Carolina law. If North Carolina law requires competitive sealed bidding for the 
item in question, the agency or department can only purchase the item from the bidder making the lowest and 
best bid most advantageous to the State. N.C. Gen. Stat. 143-52. 

8. USC's bid was in substantial compliance with the technical requirements of the RFP. 

9. USC's bid was the lowest and best bid most advantageous to the State. 

10. In requesting that the contract in response to the RFP be awarded to USC, and in awarding 
the contract to USC, DCC and DOA did not exceed their authority or jurisdiction, act erroneously, fail to use 
proper procedure, act arbitrarily or capriciously, or fail to act as required by law or rule. 

RECOMMENDED DECISION 

It is recommended that the North Carolina Department of Administration decree that: 

1 . The contract in response to the RFP was properly awarded to USC. 

2. Stauffer is entitled to no relief in response to its Petition filed in this contested case 
proceeding. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447. in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 



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f 



The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings . 

The agency that will make the final decision in this contested case is the North Carolina Department 
of Administration. 



This the 10th day of June, 1993. 



Thomas R. West 
Administrative Law Judge 



* 



# 



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CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF MECKLENBURG 



IN THE OFFICE OF 
ADMINISTRATIVE HEARINGS 
92 DHR 1699 



WAYNE SANDERS AND BRENDA SANDERS 
Petitioner, 



v. 



NORTH CAROLINA DEPARTMENT OF 
HUMAN RESOURCES 
Respondent. 



RECOMMENDED DECISION 
WITH FINDINGS OF FACT 
AND CONCLUSIONS OF LAW 



This matter came for hearing before the undersigned on April 27, 1993 at 9:00 A.M. This matter 
was before the Court on the petition of Wayne and Brenda Sanders ("the Sanders") for a contested case 
hearing challenging the revocation by the North Carolina Department of Human Resources ("the Department") 
of the Sanders' foster care license. The Sanders were present and represented by counsel, Edward F. 
Hennessey of Robinson, Bradshaw & Hinson, P. A. The Department appeared through its counsel. 
Assistant Attorney General T. Lane Mallonee. 

The issues before the Court were whether (1) the circumstances under which Ashley Bartlett 
("Ashley"), a foster child in the Sanders' care, sustained a fractured left femur in or about June 1992 reveal 
"neglect" on the Sanders' part entitling the Department to revoke their foster-care license; and (2) whether 
the circumstances under which Ashley received bruises or red marks on the backs of her calves in August 
1992 reveal "improper discipline" by the Sanders entitling the Department to revoke their foster-care license. 
A determination in favor of the Department on either (1) or (2) would support revocation. 

The Department presented evidence in support of its action through the following witnesses: (1) Betty 
Love of Mecklenburg County's Department of Social Services; (2) William C. Crummett, Jr., Social Worker 
III, Iredell County Department of Social Services; (3) Varna Lyles of Mecklenburg County Department of 
Social Services; (4) Faye Harris of Mecklenburg County Department of Social Services; and (5) Sandy Keever 
of Lincoln County Department of Social Services. Each of these witnesses was the subject of cross- 
examination by counsel for the Sanders, and in some cases of examination by the Court. The Sanders 
presented evidence in opposition to the Department's action in the form of their own testimony and that of 
Maxine Truslow, court-appointed guardian ad litem for Ashley. The Department did not elect to cross- 
examine any of the Sanders' witnesses. 

Based on the evidence received at the hearing, the Court makes the following findings of fact and 
conclusions of law: 

I. FINDINGS OF FACT 

1 . The Sanders became licensed foster-care providers in 1991 . At the time the Sanders received 
their license, they had for some two years been applicants to adopt a child through Mecklenburg County DSS. 

2. Ashley had been placed in the Sanders' care by Mecklenburg County DSS some months prior 
to the Sanders' receipt of their foster-care license. The Sanders applied for and received their foster-care 
license at the suggestion of Mecklenburg County DSS, as an adjunct to their efforts to adopt Ashley under 
the "Foster Care/ Adopt" program that Mecklenburg County DSS was following at the time it placed Ashley 
with the Sanders. 



632 



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3. The Sanders have at no time cared for or requested to care for foster children other than 
Ashley. 

4. The Sanders have cared for Ashley continuously since Ashley was some four months old. 
Ashley is now nearly two years old. Other than the two allegations in this case, there is no suggestion that 
the Sanders have ever mistreated Ashley. 

a. Findings As To The "Neglect" Allegation 

5. On the evening of June 3, 1992, the Sanders noticed that Ashley seemed to be experiencing 
discomfort in her left foot or leg, causing her to be reluctant to put weight on the foot. This condition did 
not improve over the course of the evening, and the Sanders notified the nurse assigned to Ashley by 
Mecklenburg County DSS of the condition the next morning, and took Ashley for examination by a physician 
later that day. 

6. No diagnosis of any sort of "injury" to Ashley was made on June 4, 1992, or on June 5, 
1992, when the Sanders again took Ashley for a physician's examination with respect to the discomfort in her 
left foot or leg. The only tentative diagnoses made during these two visits were of an infection or some other 
agency that might produce inflammation in the left hip or leg. Antibiotics were prescribed, and were properly 
administered by the Sanders. The Sanders had no reason to know or suspect what was causing Ashley's 
discomfort through June 5, 1992. 

7. On June 8, 1992, the Sanders again returned to physician's office to have Ashley examined. 
An x-ray examination conducted at Carolinas Medical Center on June 8 determined that Ashley had suffered 
a "greenstick" fracture of her left femur. The x-ray examination was conducted after Mr. Sanders suggested 
that one be done in light of Ashley's continued discomfort in her left foot or leg and the apparent failure of 
prescribed antibiotics to resolve the discomfort. Ashley was at that time learning to walk, and this type of 
fracture is typical of toddlers learning to walk (as the Investigative Summary prepared by Iredell DSS based 
on its investigation of the fracture relates). 

8. The Court finds insufficient evidence to make any finding as to the specific cause of Ashley's 
fracture. Iredell County DSS concluded that the fracture had not occurred when Ashley had fallen in her 
walker several days before June 3, 1992, the only incident the Sanders could recall as a possible source of 
her injury. The evidence presented to the Court was consistent with this conclusion. The Department 
presented no evidence or theory whatsoever as to the cause of Ashley's injury in support of its argument that 
the injury was the product of neglect. The Court finds as well that the State presented no evidence tending 
to show (1) that the Sanders generally failed to supervise Ashley properly; (2) that any specific incident of 
improper supervision by the Sanders had produced Ashley's injury; (3) that the injury occurred while Mrs. 
Sanders was occupied with children to whom she was providing day-care services; or (4) that the Sanders 
failed to respond to signs that Ashley had been injured that were apparent prior to the date and time they 
reported first noticing her discomfort. 

9. Evidence that the Sanders have at all times been properly attentive to Ashley's health and 
safety was uncontested. This evidence came through the testimony of the Sanders and Ms. Truslow. In 
addition, Mr. Crummett testified for the Department that he believed the Sanders to be appropriate caretakers 
and that Ashley's removal from their care would be unfortunate. 

10. Iredell County DSS, in a report authored by Mr. Crummett, "substantiated" neglect of Ashley 

by the Sanders with regard to the leg fracture. The basis of the "substantiation" was apparently (1) that the 
fracture itself resulted from inadequate supervision of Ashley by the Sanders; (2) that the Sanders did not 
identify and respond to Ashley's injury with sufficient promptness and diligence; or (3) both (1) and (2). 
Neither this report nor any testimony at the April 27 hearing suggested that Ashley's injury reflected any 
deliberate act of the Sanders. 



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CONTESTED CASE DECISIONS 



b. Findings As To The Improper Discipline Allegation 

1 1. On August 24, 1992, one or more employees at the Kiddie Farms Day Care Center ("the 

Center") notified Mecklenburg DSS that they had identified marks (variously identified by witnesses at the 
hearing as "red marks" or "bruises") on the backs of Ashley's calves. The Court finds that these marks 
consisted of a discolored line across part of Ashley's left calf and a discolored "loop" mark (i.e. a mark that 
appeared to have "looped" around the curve of the calf) across the right calf. 

12. Mrs. Sanders pointed these marks out to an employee at the Center on the morning of August 
24, 1992, and explained her belief that the marks resulted from a child's indoor swing set. Ashley had 
outgrown the swing set to some extent, but enjoyed it and was permitted to swing in it. In the course of 
swinging in, sleeping in, or being removed from the swing set, Mrs. Sanders told the employee and testified 
at the hearing, she believed Ashley had received the marks on her calves. 

13. Mrs. Sanders had observed marks such as those noticed on August 24, 1992 earlier, and had 
concluded at that time or those times that they were the product of Ashley's use of the swing set. 

14. The only evidence of possible corporal punishment of Ashley by the Sanders was (1) the fact 
of marks on Ashley's calves; and (2) Sandy Keever's testimony that, in her opinion, the swing set had not 
caused the marks. 

15. Lincoln County DSS, in a report authored by Ms. Keever, concluded that the marks reflected 
"improper discipline" of Ashley by the Sanders. There was no affirmative evidence of any sort presented in 
this report or at the April 27 hearing that the Sanders had ever disciplined Ashley by striking her. All 
testimony (including Ms. Keever's) was that the Sanders did not employ corporal punishment, that no 
instruments capable of inflicting the marks were observed in the Sanders' possession at any time, and that 
Ashley's responses to the Sanders were inconsistent with physical abuse. The Department offered no evidence 
or theory of what action by the Sanders had constituted "improper discipline" (other than Ms. Keever's 
conclusion that the swing set had not caused the marks, and an inference that some unspecified "discipline" 
had instead produced the marks. As earlier stated, there was no actual evidence of any act or instrument of 
"discipline"). 

II. CONCLUSIONS OF LAW 

1. The resolution of this case is controlled by 10 N.C.A.C. 41 F .0807. Under this regulation, 
a foster-care license is "automatically revoked when an agency duly authorized by law to investigate 
allegations of abuse or neglect finds that the foster parent has abused or neglected a child." 10 N.C.A.C. 41F 
.0807(a). Under 10 N.C.A.C. 41F .0807(e). appeal from a foster-care license revocation is under 10 
N.C.A.C. 41A .0007. This regulation permits a foster-care licensee whose license has been revoked to 
"petition for a determination of ... legal rights, privileges, or duties" at any time prior to the effective date 
of the denial. 10 N.C.A.C. 41 A .0007(b)(2). 

2. The Court determines that there is no dispute that the various social-service agencies involved 
in the investigation of alleged abuse and neglect by the Sanders are agencies "duly authorized by law to 
investigate allegations of abuse or neglect" under 10 N.C.A.C. 41F .0807(a). The Court further determines 
that there is no dispute that the Sanders' appeal(s) from the revocation of their foster-care license was timely 
and otherwise procedurally proper under 10 N.C.A.C. 41 A .0007(b). 

3. The Court further determines that its role in this matter is to determine whether the 
Department has proven by the greater weight of the evidence that the Sanders "abused or neglected" Ashley 
within the meaning of 10 N.C.A.C. 41 F .0807(a). The Court finds nothing in the law that places the initial 
burden on the Sanders to disprove abuse or neglect, and nothing granting deference to any agency conclusion 
(or, to use the word employed by the agencies involved in this case, "substantiation") that abuse or neglect 
occurred. 



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a. Conclusions As To The "Neglect" Allegation. 

4. The Court concludes that the Department has not demonstrated by the greater weight of the 
evidence that the Sanders "neglected" Ashley in connection with the leg-fracture incident. The Court bases 
this conclusion on the following: 

(a) The root of Iredell County DSS's suspicion that the leg-fracture reflected "neglect" seems to 
have been that the Sanders were unable to pinpoint the cause of Ashley's fracture. This alone does not reflect 
"neglect" on the facts of this case; as testimony from the Department's own witnesses revealed, the greenstick 
fracture Ashley suffered is not uncommon in children learning to walk, and could have occurred while Ashley 
was in her crib (where Mrs. Sanders first noticed Ashley in discomfort) or shortly before. In other words, 
the injury is of a kind that some children will incur naturally in the course of their development, and one that 
adult supervision, no matter how scrupulous, cannot entirely eliminate. For this reason, the injury does not 
"speak for itself" and is therefore different from, for example, a case in which the evidence suggested that 
a toddler had pulled a pan of boiling water from a stove, in which the facts of the injury alone suggest some 
lack of supervision. Without some evidence that this injury could in fact have been prevented by closer 
supervision, the Court is not prepared to conclude that the fact of injury alone shows neglect in, this case. 

(b) Similarly, there is nothing in the evidence of what the Sanders did once Ashley began to 
display discomfort that shows neglect. The evidence in this regard was uniform; as soon as the Sanders 
noticed Ashley in discomfort, they contacted Mecklenburg County DSS and arranged for medical attention. 
Moreover, the Sanders concern for Ashley's welfare was sufficient to prompt them to return Ashley for 
medical attention immediately when initial visits failed to provide relief. Finally, there was no medical 
evidence offered, or even suggested, to indicate that Ashley's doctors noted a troublesome delay in treatment 
of the fracture. (The Court notes that in his testimony, Mr. Crummett suggested that Mr. Sanders suggestion, 
during Ashley's third doctor's visit, that x-rays be taken somehow supports an inference that he knew her leg 
was broken. The Court notes that Mr. Crummett made no such suggestion in his written report of the leg- 
fracture investigation he conducted contemporaneously. The Court also finds no basis to join in Mr. 
Crummett's suspicion based on its observation of Mr. Sanders during his testimony. Indeed, Mr. Crummett 
admitted in his letter and in his testimony that both of the Sanders were warm and concerned parents, and 
specifically remarked in his earlier written report that it would be unfortunate if Ashley were removed from 
their care. Finally, the Court finds Mr. Sanders' suggestion most consistent with Mr. Sanders' own 
explanation of it: having observed Ashley in continued discomfort after two earlier doctor's visits in which 
inconclusive diagnoses were reached, Mr. Sanders was understandably interested in Ashley receiving the tests 
that would support some firm diagnosis. Moreover, Mr. Crummett's suspicion in some sense misses the 
point; even if the evidence suggested that Mr. Sanders had some suspicion that Ashley had a fractured leg, 
as it does not, the issue is whether the suspicion points to some sort of neglect.) 

(c) Moreover, there was no evidence whatsoever to suggest that the Sanders were generally 
neglectful or inattentive parents (evidence that might support an inference that a pattern of neglect had 
contributed to Ashley's injury or had led to delayed medical attention to the fracture). To the contrary, and 
again through the Department's witnesses, the evidence was that the Sanders are, if anything, unusually 
attentive to Ashley. 

b. Conclusions As To The "Improper Discipline" Allegation 

5. The Court notes at the outset that this allegation, as framed by the Department, is somewhat 
problematic. 10 N.C.A.C. 41 F .0807(a) does not provide for foster-care license revocation for "improper 
discipline. " The Court will, however, interpret this allegation to be one of "abuse" within the meaning of the 
regulation, as the allegation is of some sort of "active" mistreatment of Ashley rather than the passive or 
negligent mistreatment alleged with regard to the leg-fracture incident. 

6. Like the earlier allegation, the Department's case here is built essentially on negative 
inference. Just as the Department argued that the Sanders inability to explain how Ashley broke her leg 
supports an inference of neglect, it appears to argue here that the Sanders' inability to explain the source of 



8:7 NORTH CAROLINA REGISTER July 1, 1993 635 



CONTESTED CASE DECISIONS 



the marks in a manner with which Lincoln County DSS supports an inference of abuse. As with the earlier 
allegation, there is no specific evidence pointing to a violation of the regulation in the circumstances that 
produced Ashley's injury, and no general evidence suggesting that the Sanders are (or even that they might 
be) abusive parents to Ashley. The Department's approach is therefore troubling at the outset because it 
implies that the Department's action is valid unless the Sanders can themselves prove by the greater weight 
of the evidence that the circumstances surrounding these incidents do not reflect neglect or abuse. 

7. Following a full and careful review of the evidence, and based on its findings of fact, the 

Court again concludes that the Department has failed to prove the conduct required under 10 N.C.A.C. 41 F 
.0807(a) by the greater weight of the evidence. The Court bases its conclusion on the following: 

(a) Ms. Keever testified that she was trained and experienced in investigating child abuse, and 
stated specifically that she did not believe Ashley had been in any way abused by the Sanders. Moreover--and 
again in unison with every other witness— Ms. Keever testified that the Sanders were loving and attentive 
foster-care parents to Ashley and that she saw no affirmative evidence that the Sanders had ever physically 
disciplined Ashley in any manner. This "character" testimony is consistent with that of the Sanders, Ms. 
Truslow, and (for the Department) Ms. Love and Ms. Harris, who testified that the Sanders only interest in 
becoming foster care parents in the first place was to make themselves eligible to care for Ashley during what 
have apparently been tortuous (and continuing) adoption proceedings. 

(b) The Court is unable to conclude that the Sanders abused Ashley based on the only specific 
evidence of possible abuse offered by the Department, which is (i) the marks; and (ii) Ms. Keever's conclusion 
that the marks did not come from an indoor swing set in which Ashley, though by then larger than the set 
could comfortably accommodate, nonetheless liked to play. In her letter conveying the initial conclusion of 
"improper discipline", Ms. Keever had noted that she based her conclusion that the swing set was not the 
source of the marks in part on her conclusion that Ashley would have had marks atop her thighs as well as 
on her calves if the calf marks resulted, as the Sanders claimed, from abrasion between Ashley and the swing 
set as they removed her from it. Nowhere in her letter did Ms. Keever indicate that she believed the swing 
set would simply not have abraded Ashley at the points in her calves where marks were, in fact, observed. 

In her testimony, Ms. Keever admitted that it was possible that Ashley might not have displayed 
marks on the tops of her thighs in addition to those on her calves if the swing set were, as the Sanders 
believed, the source of the calf marks. Ms. Keever also admitted that she had never seen any actual marks 
on Ashley, but based her conclusions on where the marks were on Ashley's body and on how they might have 
been incurred based on photographs taken by Ms. Harris. Ms. Keever did consistently maintain the position 
in her testimony that her examination of the swing set suggested that the marks had not come from the set, 
but also admitted she had never seen or asked to see Ashley in the set to confirm her position. 

(c) By contrast, Mrs. Sanders testified specifically that she had observed the marks and had 
pointed them out to a day-care worker on the day the marks were reported to Mecklenburg County DSS, 
explaining that they had come from Ashley's play in the swing set. Further. Mrs. Sanders testified that she 
had seen such marks on Ashley's legs at earlier times, and had then concluded that they resulted from play 
in the swing set. The Department offered no evidence to contradict this testimony, and the Court finds the 
testimony inconsistent with a conclusion that Mr. or Mrs. Sanders inflicted the marks on Ashley through some 
"abusive" conduct; 

(d) Both of the Sanders testified that they had never disciplined Ashley physically in any way, 
and moreover that they possessed no instruments of physical discipline. The Department had asked Ms. 
Keever if the marks could have come from a belt or cord of some sort, and Ms. Keever answered that they 
could. The Department, however, offered no evidence that the Sanders possessed such an instrument, and 
much less evidence linking such an instrument to the marks. In fact, the Department did not question the 
Sanders on whether they possessed or had ever possessed such an instrument; 

(e) Based on this evidence, the Court is left to debate, as the parties did at the hearing, how the 
marks came to appear on Ashley's calves. The Court cannot, however, conclude, as the Department would 



636 8:7 NORTH CAROLINA REGISTER July 1, 1993 



CONTESTED CASE DECISIONS 



have it do, that the marks reveal abuse. The evidence of any sort of physical discipline of Ashley by the 
Sanders was uniform: even the Department's witnesses admitted that they had no reason to suspect that the 
Sanders ever struck Ashley (and the impressions of the Sanders given by these witnesses support, if anything, 
the opposite conclusion), and had no evidence that the Sanders possessed or had ever possessed any instrument 
of physical discipline that could have left the marks. Notably, Ms. Keever testified that Ashley showed none 
of the behaviors associated with child abuse, and stated that she did not believe Ashley to have been abused. 
As earlier stated, evidence concerning the history of the Sanders relationship with Ashley and of their foster- 
care license reveals no abusive tendencies or any reason to suspect that the Sanders treated Ashley improperly. 

In evaluating the Department's case, therefore, the Court must determine whether Ms. Keever's 
testimony— the only source of evidence supporting a theory of "abusive" conduct--, understood in light of the 
other evidence in this case, is sufficient to carry the Department's burden. The Court concludes that it is not. 
It is simply not enough for the Department to show evidence of marks and to attempt to discredit the Sanders' 
explanation of their origin; without some affirmative evidence that the marks reflected some conduct 
constituting "abuse" under the controlling regulation, or at least that the Sanders used physical discipline or 
even possessed some instrument of physical discipline, the Court cannot conclude that the Department has 
carried its burden on this allegation. 

Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED as 
follows: 

(1) The Department has failed to prove either neglect or abuse on the part of the Sanders by the 
greater weight of the evidence; 

(2) The Department is therefore without basis to revoke the Sanders foster-care license; and 

(3) The Sanders foster-care license is accordingly reinstated. 
This 7th day of June, 1993. 



Robert Roosevelt Reilly Jr. 
Administrative Law Judge Presiding 



8:7 NORTH CAROLINA REGISTER July 1, 1993 637 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, 
titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major 
department in the North Carolina executive branch of government has been assigned a title number. 
Titles are further broken down into chapters which shall be numerical in order. The other two, 
subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 




Architecture 


2 


2 


Agriculture 




Auctioneers 


4 


3 


•\uditor 




Barber Examiners 


6 


4 


Economic & Community 


Development 


Certified Public Accountant Examiners 


8 


5 


Correction 




Chiropractic Examiners 


Ki 


6 


Council of State 




General Contractors 


12 


7 


Cultural Resources 




Cosmetic Art Examiners 


14 


8 


Elections 




Dental Examiners 


16 


9 


Governor 




Dietetics/ Nutrition 


17 


10 


Human Resources 




Electrical Contractors 


IX 


11 


Insurance 




Electrolysis 


19 


12 


Justice 




Foresters 


20 


13 


Labor 




Geologists 


21 


14A 


Crime Control & Public 


Safety 


Hearing Aid Dealers and Fitters 


:: 


15A 


Environment. Health, and Natural 


Landscape Architects 


26 




Resources 




Landscape Contractors 


28 


16 


Public Education 




Marital and Family Therapy 


31 


17 


Revenue 




Medical Examiners 


32 


18 


Secretary of State 




Midwifery Joint Committee 


33 


19A 


Transportation 




Mortuary Science 


34 


20 


Treasurer 




Nursing 


36 


21 


Occupational Licensing E 


loards 


Nursing Home Administrators 


37 


T5 


Administrative Procedures 


Occupational Therapists 


38 


23 


Community Colleges 




Opticians 


40 


24 


Independent Agencies 




Optometry 


42 


25 


State Personnel 




Osteopathic Examination & Reg. (Repealed) 


44 


26 


Administrative Hearings 




Pharmacy 

Physical Therapy Examiners 

Plumbing. Heating & Fire Sprinkler Contractors 

Podiatry Examiners 

Practicing Counselors 

Practicing Psychologists 

Professional Engineers & Land Surveyors 

Real Estate Commission 

"Reserved" 

Refrigeration Examiners 

Sanitarian Examiners 

Social Work 


46 

48 
50 
52 
53 
54 
56 
58 
59 
60 
62 
63 



Speech & Language Pathologists & Audiologists 64 
Veterinary Medical Board 66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



638 



8:7 



NORTH CAROLINA REGISTER 



July 1, 1993 



CUMULATIVE INDEX 



CUMULATIVE INDEX 

(April 1993 - March 1994) 

Pages Issue 

I - 92 1 April 

93 - 228 2 - April 

229 - 331 3 May 

332 - 400 4 - May 

401 - 455 5 - June 

456 - 502 6 - June 

503 - 640 7 - July 



Unless otherwise identified, page references in this Index are to proposed rules. 



ADMINISTRATION 

Administration's Minimum Criteria, 5 

Low-Level Radioactive Waste Management Authority, 232 

ADMINISTRATIVE HEARINGS 

Civil Rights Division, 370 
General, 366 
Rules Division, 367 

AGRICULTURE 

N.C. State Fair, 506 
Plant Industry, 513 
Veterinary Division, 515 

COMMERCE 

Alcoholic Beverage Control Commission, 408 

Banking Commission, 408 

Savings Institutions Division: Savings Institutions Commission, 461 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management, 279, 571 
Departmental Rules, 465 
Environmental Management, 210, 556 
Health Services, 283, 335, 425, 465, 572 
Marine Fisheries, 28, 568 
Soil and Water Conservation, 214 
Wildlife Resources Commission, 32 
Zoological Park, 337 

FINAL DECISION LETTERS 

Voting Rights Act, 4, 407, 460 

GOVERNOR/LT. GOVERNOR 

Executive Orders, 1, 93, 229, 332, 401, 456 



8:7 NORTH CAROLINA REGISTER July 1, 1993 639 



CUMULATIVE INDEX 



HUMAN RESOURCES 

Facility Services, 94 

Medical Assistance, 25, 414, 553 

Mental Health, Developmental Disabilities and Substance Abuse Services, 7, 413, 516 

Social Services Commission, 237 

INSURANCE 

Actuarial Services, 555 

Medical Database Commission, 463 

JUSTICE 

Attorney General, Office of the, 28 

Criminal Justice Education and Training Standards Commission, 253 

Criminal Justice Standards Division, 241 

Private Protective Services Board, 252 

LABOR 

OSHA, 97, 231, 278 

LICENSING BOARDS 

Architecture, 43 

Geologists, Board of, 285 

Medical Examiners, Board of, 591 

Mortuary Science, Board of, 45, 342 

Nursing Home Administrators, 346 

Pharmacy, Board of, 47, 354 

Physical Therapy Examiners, 53 

Plumbing, Heating and Fire Sprinkler Contractors. 360 

Real Estate Commission, 53, 364 

Social Work, Certification Board for, 428 

LIST OF RULES CODIFIED 

List of Rules Codified, 61, 290, 432, 593 

PUBLIC EDUCATION 

Elementary and Secondary Education, 427, 470 

STATE PERSONNEL 

Office of State Personnel, 286 

STATE TREASURER 

Retirement Systems, 337 

TAX REVIEW BOARD 

Orders of Tax Review, 503 



♦ 



I 



♦ 



640 8:7 NORTH CAROLINA REGISTER July 1, 1993 



NORTH CAROLINA ADMINISTRATIVE CODE 



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